                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             DEC 03, 2007
                              No. 06-10339                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                     D. C. Docket No. 05-20277-CR-SH

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

JOSE ANTONIO REYES-RODRIGUEZ,

                                                          Defendant-Appellant.


                        ________________________

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

                             (December 3, 2007)

Before ANDERSON, HULL and PRYOR, Circuit Judges.

PER CURIAM:

     Jose Antonio Reyes-Rodriguez appeals his sentence of imprisonment for 51
months following a plea of guilty to unlawful reentry to the United States after

deportation. See 18 U.S.C. § 1326(a), (b)(2). Reyes-Rodriguez presents three

arguments on appeal. First, he argues that the government breached the plea

agreement by not recommending a sentence at the low end of the advisory

Sentencing Guidelines. Second, Reyes-Rodriguez argues that his sentence is

unreasonable. Third, Reyes-Rodriguez contends that the district court erred when

it enhanced his sentence based on facts not determined by a jury. We review each

argument in turn and affirm.

       Reyes-Rodriguez argues that the government breached its promise in the

plea agreement to recommend a sentence at the low end of the Guidelines range.

Reyes-Rodriguez failed to object to the alleged breach of the plea agreement, after

being afforded an opportunity to object to the sentence, so we review for manifest

injustice. See United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).

“[We] equate[] manifest injustice inquiry with review for plain error.” Id. Plain

error exists when there is (1) error, (2) that is plain, and (3) that affects substantial

rights. United States v. Moriarty, 429 F.3d 1012, 1019 (11th Cir. 2005). For an

error to affect substantial rights, it “must have affected the outcome of the district

court proceedings.” United States v. Rodriguez, 398 F.3d 1291, 1299 (11th Cir.

2005). If it is uncertain whether an error would have affected the outcome, the



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defendant’s appeal fails. Id. at 1300.

      Even if the government breached its agreement to recommend a sentence at

the low end of the Guidelines range, there is no clear evidence in the record that

the district court would have imposed a shorter sentence had the recommendation

been made. The record is silent. Because Reyes-Rodriguez failed to establish that

the failure of the government to comply with the plea agreement affected his

substantial rights, the district court did not plainly err when it imposed a sentence

at the high end of the Guidelines range.

      Reyes-Rodriguez next argues that his sentence is unreasonable. He contends

that the district court failed to give adequate consideration to his arguments for

mitigation and overemphasized his criminal history. We disagree.

      We review a sentence for reasonableness. United States v. Talley, 431 F.3d

784, 785 (11th Cir. 2005). “Review for reasonableness is deferential.” Id. at 788.

“[T]he party who challenges the sentence bears the burden of establishing that the

sentence is unreasonable in the light of both [the] record and the factors in section

3553(a).” Id. “When we review a sentence for reasonableness, we do not, as the

district court did, determine the exact sentence to be imposed.” Id. “We must

evaluate whether the sentence imposed by the district court fails to achieve the

purposes of sentencing as stated in section 3553(a).” Id. “[W]hen the district court



                                           3
imposes a sentence within the advisory Guidelines range, we ordinarily will expect

that choice to be a reasonable one.” Id.

      Reyes-Rodriguez’s argument that his sentence is unreasonable fails. “The

weight to be accorded any given § 3553(a) factor is a matter committed to the

sound discretion of the district court.” United States v. Williams, 456 F.3d 1353,

1363 (11th Cir. 2006). The transcript of the sentencing hearing establishes that the

district court sentenced Reyes-Rodriguez after consideration of his arguments in

favor of mitigation, the Guidelines, and the sentencing factors of section 3553(a).

The sentence Reyes-Rodriguez received, which was within the advisory Guidelines

range, was reasonable.

      Reyes-Rodriguez next argues that the district court erred when it enhanced

his sentence based on a prior conviction that was not alleged in the indictment or

determined by the jury. See U.S.S.G. § 2L1.2(b)(1)(A)(ii). Reyes-Rodriguez

contends that the enhancement violated his rights under the Fifth and Sixth

Amendments because the district court, not the jury, determined that his prior

conviction was an aggravated felony and a crime of violence. As Reyes-Rodriguez

acknowledges, his arguments are foreclosed by binding precedent. See United

States v. Greer, 440 F.3d 1267, 1275 (11th Cir. 2006); Almendarez-Torres v.

United States, 523 U.S. 224, 118 S. Ct. 1219 (1998).



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Reyes-Rodriguez’s sentence is

AFFIRMED.




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