[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 3, 2007
No. 07-11610 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00195-CR-ORL-19-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS E. BONILLA,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(October 3, 2007)
Before WILSON, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Carlos E. Bonilla appeals his 48-month sentence for illegal re-entry into the
United States after being deported for committing an aggravated felony, namely,
statutory rape of a 13-year-old female. On appeal, Bonilla argues that the district
court (1) imposed an unreasonable sentence because it relied too heavily on his
prior statutory rape conviction to the exclusion of the other factors set out in 18
U.S.C. § 3553(a), and (2) erred in subjecting him to the enhanced maximum term
of imprisonment provision of 8 U.S.C. § 1326(b)(2) based on his prior statutory
rape conviction when this conviction was neither pled in the indictment nor
admitted in connection with his guilty plea. For the reasons set forth more fully
below, we affirm.
Bonilla pled guilty to charges of illegally re-entering the United States after
being deported, in violation of 8 U.S.C. § 1326(a) and (b)(2). Although the
indictment did not refer to a prior conviction, the probation officer specified in the
presentence investigation report that Bonilla was convicted of statutory rape,
sentenced to one year in jail, removed from the country, and then re-entered
without the necessary express consent. Based on this offense conduct, the
probation officer set Bonilla’s base offense level at 8, pursuant to United States
Sentencing Guideline (U.S.S.G.) § 2L1.2(a), and applied a 16-level enhancement,
pursuant to § 2L1.2(b)(1)(A)(ii), because Bonilla was deported after committing a
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crime of violence, namely, statutory rape. Based, in part, on this calculation, the
probation officer determined that Bonilla’s guideline imprisonment range was 46
to 57 months. The probation officer noted that the statutory maximum term of
imprisonment was 20 years, pursuant to § 1326(b)(2). Bonilla objected to
receiving the 16-level enhancement, arguing that his prior statutory rape offense
did not involve violence.
Before Bonilla’s sentencing hearing, he evidently contacted the government
about participating in the district’s recently adopted fast-track program. He was
told that he could not participate, however, because of his prior statutory rape
conviction. At his sentencing hearing, the district court overruled his objection to
the 16-level enhancement, reasoning that the commentary to § 2L1.2 specifically
stated that statutory rape was a crime of violence. After hearing testimony from
three witnesses called by Bonilla in mitigation, Bonilla’s counsel’s arguments as to
the need for leniency in sentencing Bonilla, and Bonilla’s own apology, the district
court sentenced Bonilla to 48 months’ imprisonment. The district court reasoned
that this sentence appropriately addressed the seriousness of the offense, respect for
the law, just punishment, and deterrence.
On appeal, Bonilla specifically argues that the district court’s reliance on his
prior statutory rape conviction to enhance his sentence and to exclude him from
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fast-track benefits resulted in a sentence that was greater than necessary and
involved an unwarranted disparity. Bonilla also argues that the district court erred
in using his unpled and unadmitted prior statutory rape conviction to apply the
enhanced 20-year statutory maximum term of imprisonment under § 1326(b)(2),
when the instant offense of conviction normally carries a 2-year statutory
maximum term of imprisonment under § 1326(a).
We review a defendant’s sentence for reasonableness. United States v.
Talley, 431 F.3d 784, 786 (11th Cir. 2005). We review arguments made for the
first time on appeal for plain error. United States v. Smith, 480 F.3d 1277, 1279
(11th Cir. 2007), petition for cert. filed, (U.S. June 14, 2007) (No. 06-11901)
(reviewing an unpreserved Booker challenge for plain error). To prove plain error,
a defendant must show: (1) error, (2) that is plain, and (3) that affects substantial
rights. United States v. Turner, 474 F.3d 1265, 1276 (11th Cir. 2007), petition for
cert. filed, (U.S. June 05, 2007) (No. 07-5686). We have held that, “[i]n the
absence of any controlling precedent, there is no plain error in [a] case.” United
States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003)
Reasonableness
Following the Supreme Court’s decision in United States v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the sentencing court not only
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must calculate the guideline imprisonment range correctly, but also must treat that
range as advisory and impose a reasonable sentence. United States v. Talley, 431
F.3d 784, 786 (11th Cir. 2005). In determining if the district court imposed a
reasonable sentence, we refer to the factors set out in 18 U.S.C. § 3553(a). United
States v. Martin, 455 F.3d 1227, 1237 (11th Cir. 2006).
Pursuant to § 3553(a), the sentencing court shall impose a sentence
“sufficient, but not greater than necessary” to comply with the purposes of
§ 3553(a)(2), namely, reflecting the seriousness of the offense, promoting respect
for the law, providing just punishment for the offense, deterring criminal conduct,
protecting the public from future criminal conduct by the defendant, and providing
the defendant with needed educational or vocational training or medical care. See
18 U.S.C. § 3553(a)(2). The statute also instructs the sentencing court to consider
other factors, including the nature and circumstances of the offense and the history
and characteristics of the defendant as well as “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” See 18 U.S.C. § 3553(a)(1) and (6).
We do not require the district court to discuss or to state that it has explicitly
considered each part of § 3553(a). Talley, 431 F.3d at 786. Instead, an explicit
acknowledgment that the district court has considered the defendant’s arguments
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and the § 3553(a) factors will suffice. United States v. Scott, 436 F.3d 1324, 1329-
30 (11th Cir. 2005). Also, we have held that “[t]he weight to be accorded any
given § 3553(a) factor is a matter committed to the sound discretion of the district
court,” such that we “will not substitute our judgment in weighing the relevant
factors because [o]ur review is not de novo.” United States v. Williams, 456 F.3d
1353, 1363 (11th Cir. 2006), cert. dismissed, 127 S.Ct. 3040 (U.S. 2007).
Furthermore, we have held that a within-range sentence ordinarily will be expected
to be reasonable, but will not be treated as per se reasonable. United States v.
Hunt, 459 F.3d 1180, 1184 (11th Cir. 2006); Talley, 431 F.3d at 786-88.1
Specifically regarding the unwarranted-disparity factor enumerated in
§ 3553(a), we have held that the disparities in the sentences of otherwise similarly
situated defendants that arise because of involvement in fast-track programs are not
“unwarranted.” United States v. Arevalo-Juarez, 464 F.3d 1246, 1251 (11th Cir.
2006). Indeed, we have forbidden district courts from considering such disparities
in imposing reasonable sentences. Id. We have not, however, addressed whether
the district court can consider differences in the rules for qualifying for an
available fast-track program.
1
The Supreme Court recently held that appellate courts may apply a presumption of
reasonableness to sentences within the guideline range. See Rita v. United States, 551 U.S. ___, 127
S.Ct. 2456, 168 L.Ed.2d 203 (2007).
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The record demonstrates that the district court imposed a reasonable
sentence. See Talley, 431 F.3d at 786. The district court considered Bonilla’s
arguments, Bonilla’s witnesses’ testimony, and Bonilla’s statement of apology.
The district court also explicitly considered the § 3553(a) factors. As to Bonilla’s
argument regarding the district court’s application of the fast-track program,
Bonilla failed to raise this argument before the district court and has not cited any
case law suggesting that exclusion of a defendant from a fast-track program based
on his criminal history creates an unwarranted sentencing disparity because other
district courts would not have excluded him on this ground. Thus, any error by the
district court was not plain. See Smith, 480 F.3d at 1279; Lejarde-Rada, 319 F.3d
at 1291. Therefore, the district court complied with its duty under § 3553(a). See
Scott, 436 F.3d at 1329-30; Talley, 431 F.3d at 786. Furthermore, the sentence the
district court ultimately imposed was within-range and is accorded an expectation
of reasonableness. See Hunt, 459 F.3d at 1184; Talley, 431 F.3d at 786-88.
Accordingly, because the district court correctly imposed a reasonable sentence,
we affirm his sentence as to this issue. See Talley, 431 F.3d at 786.
Enhanced Statutory Maximum
Pursuant to 8 U.S.C. § 1326(a), a defendant convicted of illegal re-entry
after being deported normally is subject to a two-year statutory maximum term of
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imprisonment. Pursuant to § 1326(b)(2), however, a defendant convicted of illegal
re-entry, after being deported for committing an aggravated felony, is subject to a
20-year statutory maximum term of imprisonment.
In Almendarez-Torres v. United States, the Supreme Court held that the
government need not allege prior convictions in its indictment or prove such prior
convictions beyond a reasonable doubt before using them to sentence a defendant.
523 U.S. 224, 243-44, 118 S.Ct. 1219, 1230-31, 140 L.Ed.2d 350 (1998). The
Supreme Court has repeatedly reaffirmed this rule. See Apprendi v. New Jersey,
530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000) (creating a
prior-conviction exception by holding that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt”); Blakely v. Washington, 542 U.S. 296, 301, 303-04, 124 S.Ct. 2531, 2536,
2537-38, 159 L.Ed.2d 403 (2004) (reiterating the Apprendi rule); Booker v. United
States, 543 U.S. 220, 244, 125 S.Ct. 738, 756, 160 L.Ed.2d 621 (2005) (holding
that “[a]ny fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury
beyond a reasonable doubt”).
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We likewise have held that this rule remains good law. See United States v.
Camacho-Ibarquen, 410 F.3d 1307, 1316 n.3 (11th Cir.), cert. denied, 126 S.Ct.
457 (2005) (“Although recent decisions. . . may arguably cast doubt on the future
prospects of Almendarez-Torres’s holding regarding prior convictions, the
Supreme Court has not explicitly overruled Almendarez-Torres. As a result, we
must follow Almendarez-Torres.”); United States v. Orduno-Mireles, 405 F.3d
960, 963 (11th Cir.) (“Almendarez-Torres remains the law until the Supreme Court
determines that Almendarez-Torres is not controlling precedent”), cert. denied, 546
U.S. 885 (2005). Indeed, we recently applied this rule in the § 1326(b)(2) context,
holding that “the factual issue of whether a defendant has been convicted of an
‘aggravated felony’ for 8 U.S.C. § 1326(b)(2) enhancement purposes is not to be
treated as an element of the offense for constitutional purposes, and as a result the
prior conviction is not required to be alleged in the indictment.” United States v.
Greer, 440 F.3d 1267, 1273 (11th Cir. 2006).
Here, binding precedent demonstrates that the district court did not err in
sentencing Bonilla pursuant to § 1326(b)(2). See Smith, 480 F.3d at 1279;
Almendarez-Torres, 523 U.S. at 243-44, 118 S.Ct. At 1230-31. Accordingly, we
affirm his sentence as to this issue.
AFFIRMED.
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