United States v. Victor Castillo-Cuevas ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPT 8, 2008
No. 07-14341 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00019-CR-ORL-19-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VICTOR CASTILLO-CUEVAS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(September 8, 2008)
Before DUBINA, BLACK and PRYOR, Circuit Judges.
PER CURIAM:
Victor Castillo-Cuevas appeals his sentence imposed after pleading guilty to
illegal re-entry of a removed alien, in violation of 8 U.S.C. 1326(a) and (b)(2).
Castillo-Cuevas raises two issues on appeal. First, he asserts his Fifth and Sixth
Amendment rights were violated because the district court used his prior
convictions that were not alleged in the indictment or proven to a jury beyond a
reasonable doubt to enhance his sentence. Second, Castillo-Cuevas challenges the
availability of the fast-track or early disposition program on two grounds. He first
asserts his sentence was unreasonable because “similarly situated defendants in
other jurisdictions receive reduced sentences, demonstrating that those reduced
sentences are ‘sufficient, but not greater than necessary’ to ensure the purposes of
sentencing.” He also contends the Government’s failure to release the written
terms of its fast-track or early disposition program and the sentencing disparity
caused by the program violates his right to equal protection. We address each
issue in turn, and affirm Castillo-Cuevas’s sentence.
I.
We review de novo questions concerning the constitutionality of a sentence.
United States v. Paz, 405 F.3d 946, 948 (11th Cir. 2005). In United States v.
Almendarez-Torres, 118 S. Ct. 1219, 1222 (1998), the Supreme Court held a
defendant’s prior convictions used to enhance a sentence are not to be treated as an
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element of the offense for constitutional purposes, and as a result, the prior
conviction is not required to be alleged in the indictment. We have held the
Supreme Court's decision in Almendarez-Torres “was left undisturbed by
Apprendi, Blakely, and Booker,” United States v. Shelton, 400 F.3d 1325, 1329
(11th Cir. 2005) and “unless and until the Supreme Court specifically overrules
Almendarez-Torres, we will continue to follow it,” United States v. Greer, 440
F.3d 1267, 1273 (11th Cir. 2006).
Despite his assertion that he never admitted to the predicate convictions,
Castillo-Cuevas was in detention for violating his probation after being sentenced
for engaging in sexual activity with a minor at the time of his arrest for the instant
offense, and his alien file contained a 1992 judgment against him for battery. The
district court overruled his objection to the inclusion of any prior convictions or
information relating to the convictions. As both Supreme Court and our precedent
conclude prior convictions need not be charged in the indictment or proved to a
jury, Castillo-Cuevas’s argument to the contrary fails.
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II.
A. Reasonableness
“Section 3553(a) enumerates several factors that must be considered to
determine a reasonable sentence, and the ‘need to avoid unwarranted sentence
disparities,’ 18 U.S.C. § 3553(a)(6), is one of them.” United States v. Castro, 455
F.3d 1249, 1252 (11th Cir. 2006). However, “section 3553(a)(6) does not require
the district court to depart based on the availability of the [fast-track] departure in
only some districts.” Id. at 1253. “Any disparity created by section 5K3.1 [the
fast-track guideline] does not fall within the scope of section 3553(a)(6). When
Congress directed the Sentencing Commission to allow the departure for only
participating districts, Congress implicitly determined that the disparity was
warranted.” Id. at 1252 (internal citation omitted). “[W]e cannot say that the
sentences received by defendants in districts without fast-track programs are
‘greater than necessary’ to achieve the purposes of § 3553(a)(2) solely because
similarly-situated defendants in districts with fast-track programs are eligible to
receive lesser sentences.” United States v. Llanos-Agostadero, 486 F.3d 1194,
1199 (11th Cir. 2007). We have held it is impermissible to use the disparities
created by the fast-track guideline as the basis for imposing a downward variant
sentence. United States v. Arevalo-Juarez, 464 F.3d 1246, 1251 (11th Cir. 2006).
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We recently held that our holdings in Castro, Llanos-Agostadero, and Arevalo-
Juarez were not overruled by Kimbrough v. United States, 128 S. Ct. 558 (2007).
United States v. Vega-Castillo, __ F.3d __, No. 07-12141, 2008 WL 3833826, at
*3 (11th Cir. Aug. 19, 2008). Thus, Castillo-Cuevas’s argument his sentence was
unreasonable because “similarly situated defendants in other jurisdictions receive
reduced sentences, demonstrating that those reduced sentences are ‘sufficient, but
not greater than necessary’ to ensure the purposes of sentencing,” fails.
B. Constitutionality of program
We have held “no binding authority indicates that the distinction between
defendants sentenced in fast-track districts and defendants sentenced in other
districts involves a suspect classification or infringes on a fundamental right.”
United States v. Campos-Diaz, 472 F.3d 1278, 1280 (11th Cir. 2006), cert. denied,
127 S. Ct. 2085 (2007). Thus, we review the constitutionality of disparate access
to “fast-track” programs under the rational basis test. Id.
“[T]he absence of a fast-track program in the judicial district where a
defendant is sentenced does not violate equal protection.”1 Id. at 1279-80. “Under
the rational basis test, a law does not violate equal protection so long as [it is]
1
The Fifth Amendment to the U.S. Constitution states: “No person shall be . . . deprived of
life, liberty, or property, without due process of law.” U.S. Cont. amend. V. The Due Process
Clause incorporates the guarantees of equal protection. Johnson v. Robison, 94 S. Ct. 1160, 1165
n.4 (1974).
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rationally related to a legitimate government interest. The ‘fast-track’ program is
rationally related to the legitimate government interest of conserving prosecutorial
and judicial resources and easing congestion in judicial districts with a high
volume of immigration cases.” Id. at 1280 (internal quotation and citation
omitted). Thus, Castillo-Cuevas’s argument to the contrary fails.
The Guidelines’ policy statement on early disposition programs states a
court may depart downward “[u]pon motion by the government. . . .” See U.S.S.G.
§ 5K3.1. The determination as to whether a defendant is eligible for the fast-track
program, and therefore would receive a reduction in his sentence through a
government motion for a downward departure, or a plea bargain, is a matter of
prosecutorial discretion. We review prosecutorial discretion to determine whether
the decision of the prosecutor was motivated by unconstitutional considerations.
United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000) (regarding
government’s refusal to file a motion for a substantial assistance departure, and
stating “the government cannot exercise that power, or fail to exercise that power,
for an unconstitutional motive.”) (citing Wade v. United States, 112 S. Ct. 1840,
1843 (1992)). Castillo-Cuevas has failed to put forth an argument or introduce any
evidence showing the United States Attorney’s office used an unconstitutional
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motive when it denied his eligibility for the fast-track program and refused to move
for a downward departure.
III.
Because Supreme Court and Eleventh Circuit precedent hold prior
convictions need not be charged in the indictment or proved to a jury, Castillo-
Cuevas’s argument to the contrary fails. Additionally, Castillo-Cuevas’s sentence
is not unreasonable based on the fact similarly-situated defendants in districts with
fast-track programs are eligible to receive lesser sentences. Finally, the availability
and implementation of fast-track programs to defendants in other jurisdictions does
not violate equal protection, and Castillo-Cuevas’s ineligibility for the fast-track
program is a matter of prosecutorial discretion that Castillo-Cuevas failed to show
was abused. Accordingly, we affirm his sentence.
AFFIRMED.
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