                  REVISED APRIL 24, 2008
        IN THE UNITED STATES COURT OF APPEALS of Appeals
                                         United States Court
                                                  Fifth Circuit

                 FOR THE FIFTH CIRCUIT         FILED
                                                                  April 1, 2008

                                                             Charles R. Fulbruge III
                                 No. 07-10535
                                                                     Clerk


UNITED STATES OF AMERICA

                                            Plaintiff-Appellant

v.

WALTER WALMORES RODRIGUEZ

                                            Defendant-Appellee


                Appeal from the United States District Court
                     for the Northern District of Texas
                       USDC No. 5:06-CR-00109-ALL


Before JONES, Chief Judge, DAVIS and GARZA, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
      Walter Walmores Rodriguez pleaded guilty to one count of illegal reentry
following removal pursuant to 8 U.S.C. § 1326. In this appeal, he raises several
challenges to his sentence. Finding no error, we affirm.
                                       I.
      Pursuant to a written plea agreement, Walter Walmores Rodriguez
pleaded guilty to illegal reentry after deportation. In July 1995, Rodriguez had
pleaded guilty to the charge of distribution of cocaine in the Commonwealth of
Virginia and was sentenced to seven years in prison, with four years suspended.
      Pursuant to U.S.S.G. § 2L1.2(a), Rodriguez’s base offense level for illegal
                                    No. 07-10535

reentry after deportation was 8. The PSR treated Rodriguez’s conviction for
distribution of cocaine as a “drug trafficking offense,” and assessed a 16-level
increase pursuant to § 2L1.2(b)(1)(A). Rodriguez received a three-level reduction
for acceptance of responsibility, resulting in a total offense level of 21. Rodriguez
had a total of three criminal history points, yielding a criminal history category
of II. His Guidelines imprisonment range was 41 to 51 months.
      Rodriguez objected to any application of the statutory enhancement set out
in § 1326(b), contending that his maximum penalty should be two years, not
twenty; however, he did concede that the issue was currently foreclosed.
Additionally, Rodriguez asserted that a reduction to offense level 18 would be
appropriate in this case. Citing United States v. Booker, 543 U.S. 220 (2005),
and equal protection principles, Rodriguez argued that he was entitled to the
same or substantially similar common downward departure of two to four levels
as defendants entering guilty pleas in districts with a fast-track program.
Rodriguez further asserted that he qualified for the reduction because he had
met the eligibility requirements in that he “pleaded guilty at the earliest possible
time, . . . [did] not raise[] any motions contesting any part of his arrest or
conviction, and . . . cooperated in all respects in his own prosecution.” Rodriguez
also contended that the availability of fast-track programs to some but not other
similarly situated defendants was “based solely on geographical differences” and
is “at odds with the overall Sentencing Reform Act goal of reducing unwarranted
sentencing disparity.” In response, the PSR asserted that pursuant to United
States v. Aguirre-Villa, 460 F.3d 681, 683 (5th Cir. 2006), Rodriguez was not
entitled to a reduction for fast-track disposition. Additionally, the PSR noted
that to require the district court to vary from the Guidelines based solely on the
availability of fast-track programs in other districts would conflict with

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Congressional policy and interfere with the Attorney General’s prosecutorial
discretion.
      At the sentencing hearing, Rodriguez reasserted his written objections to
the PSR. The court overruled the objections for the reasons set forth in the PSR
addendum. Rodriguez’s counsel then asked the court to consider a sentence at
the bottom of the guidelines range, noting that Rodriguez’s criminality was
somewhat overstated because the underlying drug-trafficking felony that formed
the basis for the sentence enhancement was a single sale of half-a-gram of
cocaine to an undercover officer in 1996, and that Rodriguez had no other
criminal history aside from a self-reported public intoxication incident that
happened in his youth. Speaking on his own behalf, Rodriguez asked for peace
and that God bless the judge. The district court then sentenced Rodriguez to 51
months in prison to be followed by three years of supervised release. The court
expressed its belief that the sentence adequately addressed the objectives of
punishment and deterrence and that the supervised release would offer an
additional potential sanction should Rodriguez subsequently be deported and
attempt to unlawfully reenter the United States. Rodriguez filed a timely notice
of appeal.
                                      II.
      Rodriguez first contends that the district court committed Fanfan error by
sentencing him within a framework that limited its ability to vary from the
Guidelines, particularly in regards to sentencing disparities arising from fast-
track or early disposition programs. Rodriguez asserts that Rita v. United
States, 127 S. Ct. 2456 (2007) and Kimbrough v. United States, 128 S.Ct 558
(2007), undermine the line of cases that concluded that Booker, which made the
Guidelines purely advisory, did not give sentencing courts the discretion to

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impose a non-Guidelines sentence based on disagreement with Congressional
and Sentencing Commission policies such as allowing some districts to have fast-
track programs while others do not. For the reasons set forth in United States
v. Gomez-Herrera, No. 07-10153, decided this day, we reject this argument. Rita
and Kimbrough allow a district court to impose a non-Guideline sentence based
on disagreement with Guideline policy that results in a sentence greater [and
presumably less] than necessary to achieve the sentencing goals of 18 U.S.C. §
3553(a). Any sentencing disparity resulting from the implementation of fast
track programs in some but not all sentencing jurisdictions results from
Congressional, not Guideline, policy. Accordingly, the sentencing disparity is
not “unwarranted” within the meaning of 18 U.S.C. § 3553(a)(6).
                                       III.
      Rodriguez next contends that the district court erred in treating his prior
drug conviction as a drug-trafficking offense under § 2L1.2. Rodriguez concedes
that plain error review is proper because he did not object on this basis below.
See FED. R. CRIM. P. 52(b); United States v. Peltier, 505 F.3d 389, 392 (5th Cir.
2007).
      Section 2L1.2(b)(1)(A)(i) provides for a 16-step increase in the offense level
if the defendant was deported after a felony conviction for a drug trafficking
offense for which the sentence imposed exceeded 13 months. The commentary
to § 2L1.2 defines a “drug-trafficking offense” as “an offense under federal, state,
or local law that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or
dispense.” § 2L1.2, comment. (n.1(B)(iv)).
      The Virginia statute at issue in this case makes it unlawful to

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“manufacture, sell, give, distribute, or possess with intent to manufacture, sell,
give, or distribute a controlled substance . . . .” VA. CODE ANN. § 18.2-248(A)
(1992). The statute also provides:
      If such person proves that he gave, distributed or possessed with
      intent to give or distribute a controlled substance classified in
      Schedule I or II only as an accommodation to another individual
      who is not an inmate in a community correctional facility, local
      correctional facility or state correctional facility . . . or in the custody
      or an employee thereof, and not with intent to profit thereby from
      any consideration received or expected nor to induce the recipient
      or intended recipient of the controlled substance to use or become
      addicted to or dependent upon such controlled substance, he shall
      be guilty of a Class 5 felony.
VA. CODE ANN. § 18.2-248(D) (1992)
      Rodriguez contends that § 18.2-248(D) authorizes a conviction without
proof that the defendant intended to make the underlying offense succeed.
According to Virginia case law, § 18.2-248(D) is relevant only to sentencing and
allows the defendant to mitigate his punishment; it does not change the offense,
which remains distribution regardless of whether an accommodation is involved.
See Craddock v. Commonwealth, 580 S.E.2d 454, 462 (Va. App. 2003); McCoy v.
Commonwealth, 385 S.E.2d 628, 631 (Va. App. 1989). Rodriguez asserts that a
defendant may actually be guilty of only an accommodation, yet be convicted for
distribution. He further argues that an accommodation, a form of distribution
neither engaged in for profit nor to further a drug dealer’s efforts, see VA. CODE
ANN. § 18.2-248(D) (1992), encompasses acts broader than those contemplated
in § 2L1.2(b)(1), including aiding and abetting; and, thus, § 18.2-248(D)
criminalizes conduct that is not considered a “drug trafficking offense” and will
not support a § 2L1.2 enhancement.
      To determine whether a prior conviction qualifies as a drug trafficking

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offense for sentencing enhancement purposes, this court employs the categorical
approach set forth in Taylor v. United States, 495 U.S. 575, 602 (1990), and looks
to the elements of the prior offense, rather than to the facts underlying the
conviction. See United States v. Garza-Lopez, 410 F.3d 268, 273 (5th Cir. 2005).
If, however, a defendant has violated a statute that contains multiple disjunctive
sections that prohibit conduct that will support a sentence enhancement and
other conduct that will not support an enhancement, the court may look to
“certain conclusive records made or used in adjudicating guilt” to determine
which section applies to the defendant’s conviction.           United States v.
Bonilla-Mungia, 422 F.3d 316, 320 (5th Cir. 2005) (internal quotation marks and
citation omitted). Such records include the charging paper, a written plea
agreement, the guilty-plea transcript, factual findings by the trial judge to which
the defendant assented, and jury instructions. See id.; Shepard v. United States,
544 U.S. 13, 16 (2005) (enhancement under the Armed Career Criminal Act).
Courts may not rely on the PSR’s characterization of the offense. Garza-Lopez,
410 F.3d at 274.      The Government bears the burden of proving by a
preponderance of the relevant and reliable evidence that the facts support a
sentencing enhancement. United States v. Herrera-Solorzano, 114 F.3d 48, 50
(5th Cir. 1997).
      Here, the felony indictment charged Rodriguez with the distribution of
cocaine. Rodriguez subsequently pleaded guilty to distribution of cocaine,
conduct expressly prohibited by the statute. Given the language of the statute
and the indictment, it cannot be said that the district court erred in classifying
the prior Virginia distribution offense as a drug-trafficking offense. Because
there was no error in the district court’s interpretation of the guidelines, there


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can be no plain error.
                                      IV.
      Rodriguez argues next that his sentence is substantively and procedurally
unreasonable. The Supreme Court’s decision in Gall v. United States, 128 S.Ct.
586 (2007), bifurcated the process for reviewing a sentence. First, appellate
courts must ensure that the district court committed no significant procedural
error, such as failing to calculate or properly calculate the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a)
sentencing factors, basing a sentence on clearly erroneous facts, or failing to
adequately explain the chosen sentence.          Id. at 597.   If the sentence is
procedurally sound, we must then consider the substantive reasonableness of the
sentence under an abuse of discretion standard. Id. A Guidelines sentence, like
that the district court imposed on Rodriguez, is entitled to a presumption of
reasonableness. Id; United States v. Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).
      Rodriguez contends that his sentence was procedurally unreasonable,
specifically asserting that the district court erred in failing to address his
arguments for a downward departure and in not fully explaining its reasoning
for imposing a sentence at the top of the guidelines range. The government
argues that plain error review should apply to this issue because Rodriguez did
not object to the adequacy of the district court’s reasons at sentencing. We need
not decide the appropriate level of review, because as explained below, the
district court’s reasons were sufficient under any standard.


      Prior to Rita, this court held that if a district court imposes a sentence
within the properly determined guidelines range, little explanation is required.
See United States v. Mares, 402 F.3d 511, 519 (5th Cir. 2005). In Rita, the Court

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indicated that more than a brief statement may be required when a district court
is presented with nonfrivolous arguments for a sentence outside the Guidelines.
127 S. Ct. at 2468-69. Nevertheless, the Court concluded that the district court’s
reasons for rejecting the defendant’s § 3553(a) arguments for a non-Guidelines
sentence were, although brief, legally sufficient. Id. at 2469. Specifically, the
court noted that the record made clear that the judge listened to and considered
the arguments and evidence but simply found the circumstances insufficient to
warrant a sentence below the Guidelines range. Id. The judge said that the
range was not “inappropriate” and that a sentence at the bottom of the range
was “appropriate.” Id. The Court acknowledged that the judge might have said
more, but was not required to do so. Id.
      Here, the district court’s comments at sentencing reflect adequate
consideration of the § 3553(a) factors. See Mares, 402 F.3d at 519. At the
beginning of the sentencing hearing, the court had before it the PSR, the
defendant’s objections to the PSR and a statement from the government
adopting the matters set forth in the PSR. The defendant stated that his
objections were ones the court had seen before, and stood on them as written.
In overruling Rodriguez’s objections, the district court adopted the findings,
reasoning, and Guidelines calculations of the PSR. Rodriguez’s counsel argued
for a sentence at the bottom or below the guideline range, based on the fact that
the aggravated felony that forms the basis for the vast majority of his sentence
is for a single sale of half a gram of cocaine in 1996. The defendant had no other
significant criminal history. The district court then rejected Rodriguez’s request
for a below-guidelines sentence and imposed a maximum guidelines sentence,
expressly stating its belief that the sentence would “adequately address the
objectives of punishment and deterrence.” In light of the minimal statement

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found sufficient in Rita, Rodriguez has not demonstrated that the district court
erred with respect to its consideration of the § 3553(a) factors or in the adequacy
of its stated reasons.
       Rodriguez next contends that his sentence is substantively unreasonable
because it does not properly account for all of the § 3553(a) factors. He
specifically asserts that his sentence is unreasonable in light of the fact that (1)
the underlying conviction that formed the basis of his sentence enhancement
involved a mere 0.6 grams of cocaine; (2) his single prior conviction and low
criminal history score indicate a low risk of recidivism; (3) the 16-level
enhancement overstated the severity of his crime, as evidenced by the fact that
a portion of his sentence was suspended and he served just under 13 months; (4)
he is in fragile medical condition and has been diagnosed with sickle cell anemia,
Hepatitis C, blackouts, and upper respiratory illness; and (5) non-universal fast-
track programs create unwarranted sentencing disparities, such that even the
Sentencing Commission has recognized that these disparities contravene the
goals of the Sentencing Reform Act.1 Relevant to Rodriguez’s arguments, the
§ 3553(a) considerations include (1) the nature and circumstances of the offense
and the history and characteristics of the defendant, and (2) the need for the
sentence reflect the seriousness of the offense, promote respect for the law,
provide just punishment, afford adequate deterrence, protect the public, and (3)
the need to avoid unwanted sentencing disparities. § 3553(a)(1)-(2).
       Based on our review of the record, the district court clearly considered and
rejected these arguments as a basis for a non-Guideline sentence. As Rodriguez


       1
         Each of these factual and legal bases for a different sentence were also presented to
the district court either in argument or in the PSR. Accordingly, we apply the ordinary
standard of review to this issue.

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was sentenced within a properly calculated Guidelines range, his sentence is
entitled to a presumption of reasonableness which we see no reason to disturb.
                                        V.
      Rodriguez next contends that his sentence violates his equal protection
rights because he did not have the benefit of a fast-track program in the
Northern District of Texas, and similarly-situated defendants in jurisdictions
with the program could receive lower sentences based simply on arbitrary
geographic factors. This court reviews factual findings in equal protection cases
for clear error, while legal conclusions are reviewed de novo. Walker v. City of
Mesquite, 402 F.3d 532, 535 (5th Cir. 2005).
      It is well established that a challenged classification that neither involves
a suspect class nor impinges upon fundamental rights is accorded a strong
presumption of validity. Flores-Ledezma v. Gonzales, 415 F.3d 375, 381 (5th Cir.
2005). Rodriguez cites no case law holding that the sentencing distinction for
aliens in fast-track versus non-fast-track jurisdictions employs a suspect
classification. In addition, Rodriguez fails to provide support for his contention
that any resulting inequity involves fundamental rights.           Therefore, the
classification must be upheld if it is rationally related to a legitimate
governmental purpose. See Heller v. Doe, 509 U.S. 312, 320 (1993).
      Fast-track programs, initially established in district courts along the
southwestern United States in order to accommodate the large number of
immigration cases, offer defendants some form of sentence reduction in exchange
for the waiver of certain procedural rights. United States v. Melendez-Torres,
420 F.3d 45, 52 (1st Cir. 2005). Section 5K3.1 of the Guidelines authorizes up
to a four-level reduction for fast-track programs authorized by the United States
Attorney General and the United States Attorney for the district in which the

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court resides. Fast-track programs are proper only when “clearly warranted by
local conditions within a particular district.” Id.
      This court has not specifically addressed whether the non-application of
a fast-track program in a district violates the equal protection clause. However,
other circuits have applied the rational basis standard to uphold the use of fast-
track programs on a district-by-district basis. See United States v. Campos-Diaz,
472 F.3d 1278, 1280 (11th Cir. 2006) (holding that the fast-track program is
rationally related to the legitimate government interest of conserving
prosecutorial and judicial resources as well as easing congestion in judicial
districts with a high volume of immigration cases); United States v. Marcial-
Santiago, 447 F.3d 716, 718-19 (9th Cir. 2006) (holding that fast-track programs
are justified by the benefits gained by the Government when defendants plead
early in criminal proceedings and noting that Congress authorized early
disposition programs without revising the terms of § 3553(a)(6); thus, necessarily
providing that any resulting sentencing disparities were warranted); and
Melendez-Torres, 420 F.3d at 52 (holding that no equal protection violation exists
where the U.S. Attorney General and the U.S. Attorney for the district of Maine
were best able to evaluate whether local conditions warranted a fast-track
program or whether other reasonably conceivable objectives such as swifter
adjudication, greater deterrence, and harsher sentences were more preferable).
      Rodriguez’s arguments are conclusory in nature. He does not show that
this issue involves either a suspect class or fundamental rights, and does not
provide any case law or reliable empirical evidence to support his position.
Rodriguez cannot establish a violation of his equal protection rights because he
has not overcome the strong presumption of the validity of non-application of a
fast-track program.

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                                  No. 07-10535

                                      VI.
      In light of Apprendi v. New Jersey, 530 U.S. 466 (2000), Rodriguez
challenges the constitutionality of § 1326(b)’s treatment of prior felony and
aggravated felony convictions as sentencing factors rather than elements of the
offense that must be found by a jury.        This argument is foreclosed by
Almendarez-Torres v. United States, 523 U.S. 224, 235 (1995). United States v.
Pineda-Arrellano, 492 F.3d 624, 625 (5th Cir. 2007), cert. denied, 2008 WL 59441
(Jan. 7, 2008) (No. 07-6202).
                                     VII.
      For the foregoing reasons, Rodriguez’s sentence is AFFIRMED.




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