[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14316 ELEVENTH CIRCUIT
Non-Argument Calendar JULY 1, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20190-ASG-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
CARLTON AUGUSTUS BROWN,
a.k.a. Cortney Escoffery,
a.k.a. Kendrick Bernard Fuller,
a.k.a. Winston Thompson,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 1, 2011)
Before BARKETT, MARCUS and ANDERSON, Circuit Judges.
PER CURIAM:
Carlton Augustus Brown appeals his 57-month below-guidelines sentence
imposed following his conviction for illegally re-entering the United States after
conviction of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2).
On appeal, he raises various arguments challenging the substantive reasonableness
of his sentence. After careful review, we affirm.
I.
Brown argues that the application of the U.S.S.G. § 2L1.2(b)(1)(A)(i)’s
16-level enhancement for his 1987 drug offense results in an unreasonable
sentence because the enhancement double-counts the 1987 conviction by using it
to increase both his criminal history score and offense level, which undermines the
purposes of §3553(a).
We review de novo the district court’s application and interpretation of the
sentencing guidelines. United States v. Wilks, 464 F.3d 1240, 1242 (11th Cir.
2006). We review the reasonableness of sentences imposed under the advisory
Sentencing Guidelines under an abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51, 128 S.Ct. 586, 597 (2007). A district court abuses its
discretion when it fails to afford consideration to relevant factors that were due
significant weight, gives significant weight to an improper or irrelevant factor, or
commits a clear error of judgment in considering the proper factors, such as
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balancing the factors unreasonably. United States v. Irey, 612 F.3d 1160, 1189
(11th Cir. 2010), cert. denied, 131 S. Ct. 1813 (2011). Reasonableness review is
deferential, and the burden of establishing unreasonableness lies with the party
challenging the sentence. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005).
When reviewing a sentence for substantive reasonableness, we evaluate
whether the sentence imposed by the district court fails to achieve the purposes of
sentencing under § 3553(a). Id. A defendant’s personal disagreement with the
district court’s assessment of one or more of the factors will not be a sufficient
reason to vacate as unreasonable a district court’s careful consideration of the
§ 3553(a) factors. See United States v. Valnor, 451 F.3d 744, 752 (11th Cir.
2006).
The Sentencing Commission intended prior felony convictions to count in
determining both the criminal history category and the offense level under
§ 2L1.2. See U.S.S.G. § 2L1.2 comment. (n.6) (“A conviction taken into account
under subsection (b)(1) is not excluded from consideration of whether that
conviction receives criminal history points . . .”). We have held that the two
guidelines provisions serve different purposes with the criminal history category
serving “to punish likely recidivists more severely,” and § 2L1.2(b)(1)(A) serving
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“to deter aliens who have been convicted of a felony from re-entering the United
States.” United States v. Adeleke, 968 F.2d 1159, 1161 (11th Cir. 1992) (emphasis
omitted).
Here, both of these purposes are served by the district court’s using the
1987 drug trafficking conviction to calculate Brown’s criminal history and his
offense level. Brown committed several drug offenses and has been deported
twice already. As a result, the district court’s use of Brown’s drug trafficking
conviction to compute his criminal history score and his offense level did not
render his sentence substantively unreasonable.
II.
Brown next argues that because the Southern District of Florida does not
have a fast-track program, his higher sentence created an unwarranted sentencing
disparity between him and similarly situated defendants in fast-track jurisdictions,
which renders his sentence substantively unreasonable.
Under our prior precedent rule, we are bound to follow a prior binding
precedent, “unless and until it is overruled by this court en banc or by the Supreme
Court.” United States v. Brown, 342 F.3d 1245, 1246 (11th Cir. 2003). In United
States v. Castro, 455 F.3d 1249 (11th Cir. 2006), we held that “section 3553(a)(6)
does not require the district court to depart based on the availability of the [fast-
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track] departure in only some districts.” Id. at 1253; see also United States v.
Llanos-Agostadero, 486 F.3d 1194, 1199 (11th Cir. 2007) (holding that “a
sentencing court may not consider fast-track disparities when imposing
sentence.”). Following Kimbrough, we held “that Kimbrough did not overrule
Castro or its progeny.” Vega-Castillo, 540 F.3d at 1238. We further held that
district courts are prohibited from considering disparities created by fast-track
programs in deciding whether to impose a downward variance. Vega-Castillo,
540 F.3d at 1238-39.
Settled law in this Circuit forecloses Brown’s argument that the district
court should have considered sentencing disparities between fast-track and
non-fast-track districts when it imposed his sentence. Thus, consistent with
Vega-Castillo, the district court committed no error in not considering the
sentencing disparity between fast-track and non-fast-track districts, when it
implicitly declined Brown’s request to impose a below-guideline sentence based
upon this disparity.
III.
Finally, Brown contends that because his 57-month sentence was greater
than necessary to fulfill the purposes of § 3553(a), his sentence is substantively
unreasonable. Specifically, Brown contends that because he is an illegal alien as
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opposed to a similarly situated American citizen, he will be incarcerated longer,
will be subject to stricter confinement conditions, and will be ineligible to
participate in certain programs, which renders his sentence unreasonable.
Brown has failed to demonstrate that his 57-month below-guidelines
sentence is otherwise unreasonable. Because district courts are given due
deference in assessing the statutory factors, Brown’s opinion that the district court
should have given more weight to his illegal alien status is not a sufficient reason
to remand given the district court’s reasoned analysis.
AFFIRMED.1
1
Brown’s request for oral argument is denied.
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