                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT           FILED
                     ________________________ U.S. COURT OF APPEALS
                                                        ELEVENTH CIRCUIT
                                                        SEPTEMBER 14, 2006
                            No. 05-15460
                                                         THOMAS K. KAHN
                        Non-Argument Calendar
                                                             CLERK
                      ________________________

              D. C. Docket No. 05-00111-CR-ORL-28-DAB

UNITED STATES OF AMERICA,


                                               Plaintiff-Appellee,

                                 versus

DEVON ANTHONY WRIGHT,
a.k.a. Errol Brooks,

                                               Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (September 14, 2006)

Before BLACK, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
      Devon Anthony Wright appeals his 60-month sentence for being an alien

who was previously deported and removed from the United States and found to be

voluntarily in the United States without first having received consent, in violation

of 8 U.S.C. § 1326(a) and (b)(2). First, he argues that the district court violated

his Fifth and Sixth Amendment rights by sentencing him based on a prior

conviction for a drug trafficking offense that was not charged by the government,

admitted by him, or proved to a jury beyond a reasonable doubt. Second, he

argues that the district court failed to consider adequately 18 U.S.C. § 3553(a),

particularly subsection (a)(6), and violated his right to equal protection by refusing

to depart downward based on the sentencing disparity created by the existence of

fast-track programs in other jurisdictions. Lastly, Wright argues that the district

court improperly double-counted his prior conviction as part of his criminal

history and as a sentencing enhancement factor, and imposed a sentence

excessively disproportionate to his offense, in violation of the Eighth Amendment.

We affirm Wright’s sentence.

                                          I.

      Wright’s first contention is that the district court violated his Fifth and Sixth

Amendment rights when it enhanced his sentence based on a prior conviction for a

drug trafficking offense because this offense was not charged by the government,

                                          2
admitted by Wright, or proved to a jury beyond a reasonable doubt. Although

Wright objected to application of the enhancement below, he did not specifically

raise Fifth or Sixth Amendment claims, and we therefore review for plain error.

See United States v. Camacho-Ibarquen, 410 F.3d 1307, 1315 (11th Cir.) (per

curiam), cert. denied, __ U.S. __, 126 S. Ct. 457, 163 L. Ed. 2d 347 (2005). We

ask whether there is (1) error, (2) that is plain, (3) that affects substantial rights,

and (4) seriously affects the fairness, integrity, or public reputation of judicial

proceedings. Id.1

       Generally, an alien who has been previously deported or removed from the

United States and thereafter reenters without permission faces a maximum

imprisonment term of 2 years, see 8 U.S.C. § 1326(a), but an alien “whose

removal was subsequent to a conviction for commission of an aggravated felony”

faces a 20 year maximum term of imprisonment. Id. § 1326(b)(2). The

corresponding U.S. Sentencing Guidelines provide for a 16-level increase when

the alien was “previously deported . . . after . . . a conviction for a felony that is

[ ] a drug trafficking offense for which the sentence imposed exceeded 13

months[.]” U.S.S.G. § 2L1.2(b)(1)(A)(i); see United States v. Madera-Madera,



       1
            Even if our review of this issue was de novo, it would not change the outcome of our
analysis.

                                                  3
333 F.3d 1228, 1230 (11th Cir. 2003). A “‘[d]rug trafficking offense’” is “an

offense under federal, state, or local law that prohibits . . . the possession of a

controlled substance (or a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iv). Here,

the district court applied the 16-level enhancement based on Wright’s 1993

conviction for possession of crack cocaine with intent to distribute in violation of

federal law, an offense for which he was sentenced to, inter alia, 74 months’

imprisonment.

      In Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219, 140

L. Ed. 2d 350 (1998), the Supreme Court held 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 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). We have repeatedly held that Almendarez-Torres remains valid law. See

id. (citing Camacho-Ibarquen, 410 F.3d at 1316 n.3, for the proposition that the

Supreme Court has not overruled Almendarez-Torres). Moreover, “[p]ost-Booker,

this Court has reaffirmed that there is no Sixth Amendment violation when a

district court enhances a sentence based on prior convictions, including those

                                            4
specified in § 2L1.2(b)(1)(A).” United States v. Gallegos-Aguero, 409 F.3d 1274,

1276 (11th Cir. 2005) (per curiam). Although Wright asserts that the

characterization of his 1993 conviction as a “drug trafficking offense” was a

matter involving “disputed fact findings” by the district court, “we find no merit in

[defendant’s] argument that the Sixth Amendment requires that a jury, not a judge,

must determine whether his prior conviction is within the category of offenses

specified in § 2L1.2(b)(1)(A)[].” Id. at 1277 (citing United States v. Shelton, 400

F.3d 1325, 1329 & n. 4 (11th Cir. 2005) and Shepard v. United States, 544 U.S.

13, 24-26, 125 S. Ct. 1254, 1262-63, 161 L. Ed. 2d 205 (2005)); cf. United States

v. Gibson, 434 F.3d 1234, 1247 (11th Cir.) (“[W]hether Gibson’s prior convictions

were felonies involving a controlled substance is a question of law to be answered

by the court, not a question of fact to be found by the jury.”), cert. denied, __ U.S.

__, 126 S. Ct. 2911, 165 L. Ed. 2d 931 (2006). Wright did not dispute the

existence of his 1993 conviction for possession with intent to distribute (and

accompanying 74-month sentence) at his sentencing hearing and, as indicated

above, the Guidelines classify possession with intent to distribute as a “drug

trafficking offense” if the sentence imposed exceeded 13 months. U.S.S.G.

§ 2L1.2 cmt. n.1(B)(iv). Accordingly, we find no error, much less plain error, in


                                          5
the district court’s application of § 1326(b)(2) and § 2L1.2(b)(1)(A).2

                                              II.

       Wright also contends that the district court failed adequately to consider 18

U.S.C. § 3553(a), particularly subsection (a)(6), and violated his right to equal

protection, by refusing to depart downward based on the sentencing disparity

created by the existence of fast-track programs in other jurisdictions. We review

“[i]ssues of constitutional law and statutory interpretation” de novo, but review the

sentence imposed for reasonableness. United States v. Castro, 11th Cir. 2006, __

F.3d __, slip op. at 3013 (No. 05-16405, July 12, 2006) (per curiam) (quotations

and citations omitted). We review for plain error, however, the argument, raised

for the first time on appeal, that the sentencing disparity between defendants

prosecuted in fast-track participating districts and those in non-participating

districts violates the defendant’s equal protection rights. Id. at __, slip op. at




       2
          Wright’s argument that Almendarez-Torres does not apply to his case is without merit
because nothing in that decision indicates that a defendant must admit to the prior conviction
before or during the acceptance of his guilty plea. See Almendarez-Torres, 523 U.S. at 248, 118
S. Ct. at 1233. Moreover, we note that Wright was in fact charged with violating 8 U.S.C.
§ 1326(b)(2), which clearly states that an alien “whose removal was subsequent to a conviction
for commission of an aggravated felony” faces a term of imprisonment not to exceed 20 years,
8 U.S.C. § 1326(b)(2) (emphasis added), and Wright acknowledged at his plea hearing that he
faced a 20-year statutory maximum sentence.

                                               6
3014.3

         The fast-track departure provision of the Guidelines, § 5K3.1, is available to

defendants who agree to the factual basis of the criminal charges against them and

waive certain rights, but only in participating judicial districts. See id. at __, slip.

op. at 3012. While 18 U.S.C. § 3553(a)(6) requires the district court to consider

“the need to avoid unwarranted sentence disparities,” we held in Castro that

“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 __, slip op.

at 3014. Furthermore, Wright cannot show plain error with respect to his equal

protection claim, because he fails to identify any binding precedent holding that

the limited availability of the fast-track departure violates equal protection. See id.

at __, slip op. at 3014-15. Thus, Wright has not carried “the burden of

establishing that the sentence is unreasonable in the light of both [the] record and

the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th

Cir. 2005) (per curiam). Indeed, the district court explicitly stated that it was


         3
          Assuming that, at sentencing, the combination of Wright’s mere citation to United
States v. Galvez-Barrios, 355 F. Supp. 2d 958 (E.D. Wis. 2005)–which was not an equal
protection decision–and the district court’s statement that the holding in Galvez-Barrios
concerned the disparity’s relevance under 18 U.S.C. § 3553, was sufficient to preserve Wright’s
§ 3553(a)(6) argument for appeal, it did not, contrary to Wright’s contention, preserve his equal
protection argument. See United States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006).

                                                7
considering § 3553(a) and imposed a 60-month sentence, which was within the

57-71 month Guidelines range and one-fourth of the 20-year statutory maximum.

See United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005) (district courts do

not need to discuss each § 3553(a) factor); United States v. Martinez, 434 F.3d

1318,1322 (11th Cir.) (“easily” concluding that sentence within the Guidelines

range and almost one-third the length of the 20-year statutory maximum was not

unreasonable), cert. denied, __ U.S. __, 126 S. Ct. 2946, __ L. Ed. 2d __ (2006).

                                        III.

      Finally, Wright argues that the district court improperly double-counted his

prior conviction as part of his criminal history and as a sentencing enhancement

factor, thereby imposing a sentence excessively disproportionate to his offense, in

violation of the Eighth Amendment. As with Wright’s equal protection claim, his

mere citation to Galvez-Barrios and the district court’s comment that Galvez-

Barrios addressed fast-track sentencing disparities did not preserve Wright’s

double-counting or Eighth Amendment objections. See Massey, 443 F.3d at 819.

Accordingly, we review these claims for plain error. See id. at 818.

      We have upheld, against a due process/equal protection challenge, double

counting a defendant’s prior conviction both as part of his criminal history and as


                                         8
a sentencing enhancement under U.S.S.G. § 2L1.2. See United States v. Adeleke,

968 F.2d 1159, 1161 (11th Cir. 1992) (“The Commission clearly intended prior

felonies to count against defendants under both the criminal history section and

§ 2L1.2, . . . and this result is permissible because of the divergent policies

[supporting each factor].” ); United States v. Huang, 977 F.2d 540, 544-45 (11th

Cir. 1992) (per curiam) (“The upward departure of the base offense level reflected

the seriousness of Huang’s crime, given his admitted smuggling of aliens on at

least ten occasions; the criminal history adjustment indicated an attempt by the

sentencing judge to deter Huang from future smuggling activity.”); Martinez, 434

F.3d at 1323 n.4 (rejecting double-counting challenge where defendant’s prior

convictions were used both to increase his base offense level under

§ 2L1.2(b)(1)(A) and to determine his criminal history points). Thus, circuit

precedent forecloses Wright’s double counting claim. Furthermore, Wright cannot

prove plain error with respect to his Eighth Amendment and disproportionate

sentence arguments, given that: (1) the double-counting was permissible;

(2) Wright has not established that his sentence is unreasonable; and (3) he has

failed to identify any precedent holding that the fast-track disparity or double-

counting result in a sentence that violates the Eighth Amendment. See United


                                           9
States v. Moriarty, 429 F.3d 1012, 1024 (11th Cir. 2005) (per curiam) (threshold

question in Eighth Amendment cases is whether sentence imposed is grossly

disproportionate to the offense committed).

                                        IV.

      Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error, and therefore affirm Wright’s sentence.

      AFFIRMED.




                                         10
