                                                                [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 11-14695         ELEVENTH CIRCUIT
                         Non-Argument Calendar        APRIL 6, 2012
                       ________________________        JOHN LEY
                                                        CLERK
                  D.C. Docket No. 1:11-cr-20451-CMA-1



UNITED STATES OF AMERICA,

                               llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

                                   versus

OSCAR JUNIOR BONILLA HERNANDEZ,

                            llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.

                      ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (April 6, 2012)

Before PRYOR, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
      Oscar Bonilla Hernandez appeals his forty-eight month sentence following

his conviction for illegal reentry after removal in violation of 8 U.S.C. § 1326(a),

(b)(1). After review of the parties’ briefs, we affirm the district court.

      Bonilla is a citizen of Honduras. He was arrested by Immigration and

Customs Enforcement officers on June 13, 2011 after they determined that he was

in the country illegally. Bonilla pleaded guilty to the charge of illegal reentry. At

sentencing, the district court adopted the Pre-Sentence Report’s recommendation

of a base offense level of eight under U.S.S.G. § 2L1.2, a sixteen-level

enhancement for a previous conviction for a crime of violence under U.S.S.G.

§ 2L.2(b)(1)(A)(ii), and a three-level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a) and (b). The PSR also recommended a criminal

history category of III, based on Bonilla’s prior conviction for aggravated battery

and two prior felony traffic violations. The overall offense level of twenty-one

and the criminal history category of III resulted in a guideline sentence range of

forty-six to fifty-seven months.

      On appeal, Bonilla argues that the sentence is substantively unreasonable

because 1) the district court did not adequately consider the sentencing factors

under 18 U.S.C. § 3553(a); 2) the criminal history enhancement under

§ 2L1.2(b)(1)(A)(ii) was not supported by empirical evidence; and 3) the district

                                           2
court failed to consider the sentencing disparities that exist between fast track and

non-fast track jurisdictions under 18 U.S.C. § 3553(a)(6). We consider each

argument in turn.

       We review a sentence for substantive reasonableness1 under an abuse of

discretion standard. Gall v. United States, 552 U.S. 38, 51, 128 S. Ct. 586, 597

(2007). This Court assesses the substantive reasonableness in light of the record

and the factors listed under 18 U.S.C. § 3553(a). United States v. Talley, 431 F.3d

784, 788 (11th Cir. 2005). A sentence must be “sufficient, but not greater than

necessary” to “reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment,” as well as deter criminal conduct. 18 U.S.C.

§ 3553(a)(2). Although we do not automatically presume a sentence within the

guideline range to be reasonable, we ordinarily expect it to be reasonable. United

States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). We review arguments raised

for the first time on appeal for plain error. United States v. Bennett, 472 F.3d 825,

831 (11th Cir. 2006).2

       First, Bonilla argues that his sentence is substantively unreasonable under


       1
           Bonilla has not argued that his sentence is procedurally unreasonable.
       2
           To demonstrate plain error, a defendant must show: 1) there is an error; 2) that is plain;
3) that affects his substantial rights; and 4) that seriously affects the fairness or integrity of a
judicial proceeding. United States v. Lejarde-Rada, 319 F.3d 1288, 1290 (11th Cir. 2003).

                                                  3
§ 3553(a) because the district court gave almost exclusive consideration to his

prior aggravated battery conviction, and failed to consider mitigating factors, such

as the circumstances of the charged offense, and his family responsibilities.

However, the district court considered a number of factors beyond Bonilla’s prior

conviction for aggravated battery, including his multiple prior illegal reentries, his

demonstrated willingness to violate the laws once he was in the United States, and

his family situation. Given that the district court weighed the § 3553(a) factors,

we will not substitute our judgment for that of the district court by re-weighing

those factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007).

      Second, Bonilla argues that U.S.S.G. § 2L1.2(b)(1)(A)(ii) is not supported

by empirical evidence, and that the provision disproportionately increased his

offense level relative to the seriousness of his underlying offense. Bonilla

apparently neither raised this argument in his objections to the PSR nor at the time

of sentencing. Therefore, we review the argument for plain error. This Court has

previously held that the absence of empirical evidence alone is not sufficient to

compel invalidation of a sentencing guideline. United States v. Snipes, 611 F.3d

855, 870 (11th Cir. 2010). Therefore, Bonilla cannot establish that the district

court’s alleged misapplication of § 2L1.2(b)(1)(A) was plain error. See Lejarde-

Rada, 319 F.3d at 1291 (“[W]here the explicit language of a statute or rule does

                                          4
not specifically resolve an issue, there can be no plain error where there is no

precedent from the Supreme Court or this Court directly resolving it.”) (citations

omitted).

       Finally, Bonilla argues that the district court erred under § 3553(a)(6)3 in

failing to consider sentencing disparities between fast-track and non-fast track

jurisdictions. Given that he did not raise this issue in the district court, we also

review this argument under the plain error standard. This Court is bound by

United States v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008), which holds that

§ 3553(a)(6) does not require district courts to depart downward based upon the

availability of fast-track sentencing departures in other jurisdictions. Id. at

1238–39. Therefore, the district court’s failure to consider the fast-track

sentencing disparities cannot be plain error.

       For the reasons stated, we AFFIRM the district court.




       3
         This section provides that district courts should “avoid unwarranted sentence disparities
among defendants with similar records who have been found guilty of similar conduct.” 18
U.S.C. § 3553(a)(6).

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