                                                         [DO NOT PUBLISH]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



                                          2
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).



                                            4
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).

                                                 5
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




                                          6
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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