[DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                          OCTOBER 15, 2007
                             No. 07-11281                 THOMAS K. KAHN
                         Non-Argument Calendar                CLERK
                       ________________________

               D. C. Docket No. 06-00221-CR-ORL-28-JGG

UNITED STATES OF AMERICA,


                                                  Plaintiff-Appellee,

                                  versus

HUGO RODRIGUEZ CORREA,
a.k.a. Hugo Correa,
a.k.a. Hugo Rodriguez,
                                                   Defendant-Appellant.


                       ________________________

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

                             (October 15 ,2007)

Before BARKETT, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Hugo Rodriguez-Correa appeals his 46-month sentence for illegal reentry of

a removed alien, in violation of 8 U.S.C. § 1326(a) and (b)(2). On appeal,

Rodriguez-Correa raises five arguments: 1) that his Fifth and Sixth Amendment

rights were violated where 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; 2) the absence of an “explicit and clearly defined fast-track”

program in the Middle District of Florida violates Rodriguez-Correa's equal

protection rights; 3) the U.S. Attorney’s office in the Middle District of Florida has

an unwritten fast-track program, and this violates his due process rights; 4) the

district court should consider the disparity associated with fast-track programs to

impose a reasonable sentence under 18 U.S.C. § 3553(a); and 5) his 46-month

sentence is unreasonable considering his history and characteristics and the nature

and circumstances of the offense.

      First, Rodriguez-Correa argues that his Fifth and Sixth Amendment rights

were violated where 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 under both U.S.S.G. § 2L1.2(b)(1)(A) (adding 16 levels for having a

prior aggravated felony) and U.S.S.G. § 4A1.1 (by the addition of criminal history

points). He acknowledges that his argument is foreclosed by this Court’s



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precedent, but raises the claim to preserve it for further appellate review.

      In Almendarez-Torres v. United States, the Supreme Court held that a

defendant’s prior convictions used to enhance a sentence is not to be treated as an

element of the offense for constitutional purposes, and as a result the prior

conviction is not required to be alleged in the indictment. Almendarez-Torres v.

United States, 

, 226, 

, 1222, 

(1998).

We have held that, “unless and until the Supreme Court specifically overrules

Almendarez-Torres,” we will continue to follow it. United States v. Greer, 

, 1273 (11th Cir. 2006).

      Second, Rodriguez-Correa argues that the absence of an “explicit and clearly

defined fast-track” program in the Middle District of Florida violates

Rodriguez-Correa's equal protection rights. Rodriguez-Correa urges this Court to

apply strict scrutiny to his equal protection challenge. Rodriguez-Correa contends

that the absence of such a program fails under strict scrutiny, and even rational

basis, analysis.

      We have held that “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, 

, 1280 (11th Cir. 2006), cert.



                                           3
denied, 

(2007), and specifically held that “the absence of a

fast-track program in the judicial district where a defendant is sentenced does not

violate equal protection.” 

      Third, Rodriguez-Correa maintains that the U.S. Attorney’s Office in the

Middle District of Florida had a recently implemented “fast-track” or “early

disposition” program, but that the government is not releasing the written terms of

the program, which he contends violates his due process rights.

      Determining whether Rodriguez-Correa was eligible for the program, and

thus would have received a reduction in his sentence through a plea bargain or a

government’s motion for downward departure, is a matter of prosecutorial

discretion. See United States v. Pickering, 

, 1174 (11th Cir. 1999)

(stating that “entering into plea bargains is within the United States Attorney's

prosecutorial discretion”) (citation omitted), overruled on other grounds as stated

in United States v. Orrega, 

, 1098 n8 (11th Cir. 2004); see also,

United States v. Rankin, 

, 505 (5th Cir. 1978) (stating that “there is no

constitutional right to plea bargain.”) (citing Weatherford v. Bursey, 

,

561, 

, 846, 

(1977)); see also United States v. Orozco,

160 F.3d 1309,1316 (11th Cir. 1998) (stating that “[d]etermining whether a motion

for reduction of sentence will be filed is reserved to the government.”).



                                             4
      We review prosecutorial discretion to determine whether the decision of the

prosecutor was motivated by unconstitutional considerations. United States v.

Nealy, 

, 831 (11th Cir. 2000) (regarding government’s refusal to file

motion for substantial-assistance departure, and stating “the government cannot

exercise that power [of discretion], or fail to exercise that power, for an

unconstitutional motive.”) (citing Wade v. United States, 

, 

, 1843, 

(1992)).

      In the instant case, Rodriguez-Correa has failed to introduce any evidence

showing that the United States Attorney’s office used an unconstitutional motive

when it denied his eligibility for the fast-track program. Thus, his argument fails.

      Fourth, Rodriguez-Correa acknowledges that this Court’s precedent

forecloses his claim that the district court should consider the disparity associated

with fast-track programs to impose a reasonable sentence under 18 U.S.C.

§ 3553(a), but nevertheless raises the issue to preserve it for further review.

      Finally, Rodriguez-Correa argues that his 46-month sentence is unreasonable

considering his history and characteristics and the nature and circumstances of the

offense.

      We have held that “[i]n reviewing the ultimate sentence imposed by the

district court for reasonableness, we consider the final sentence, in its entirety, in



                                            5
light of the § 3553(a) factors.” United States v. Martin, 

, 1237 (11th

Cir. 2006). The § 3553(a) factors include: (1) the nature and circumstances of the

offense and the history and characteristics of the defendant; (2) the need for the

sentence (A) to reflect the seriousness of the offense, to promote respect for the

law, and to provide just punishment for the offense, (B) to afford adequate

deterrence to criminal conduct, (C) to protect the public from further crimes of the

defendant, and (D) to provide the defendant with needed educational or vocational

training or medical care; (3) the kinds of sentences available; (4) the Sentencing

Guidelines range; (5) pertinent policy statements of the Sentencing Commission;

(6) the need to avoid unwarranted sentencing disparities; (7) and the need to

provide restitution to victims. See 18 U.S.C. § 3553(a)(1)-(7).

      The burden of proving that the sentence is unreasonable in light of the record

and these factors rests on the challenger. United States v. Talley, 

,

788 (11th Cir. 2005). We have compared the sentence actually imposed to the

statutory maximum in the reasonableness review process. See United States v.

Winingear, 

, 1246 (11th Cir. 2005). Recently, we noted in United

States v. Campbell,

             We do not in this circuit presume reasonable a sentence
             within the properly calculated Guidelines range. See
             United States v. Hunt, 

, 1185 (11th Cir.
             2006). Recently, however, the U.S. Supreme Court

                                    6
             upheld other circuits’ decisions affording such a
             presumption, noting that a sentence, independently
             calculated by the district court in accordance with
             Booker, that falls within the properly calculated
             Guidelines range “significantly increases the likelihood
             that the sentence is a reasonable one.” Rita v. United
             States, 551 U.S.___, [

, 2462-63, 

203 (2007)].

Campbell, 

, 1313-1314 (11th Cir. 2007).

      At the sentencing hearing, the district court stated that it had considered “the

advisory sentencing guidelines and all of the factors identified in” 18 U.S.C.

§ 3553(a)(1)-(7), and that the court found that “the sentence imposed is sufficient

but not greater than necessary to comply with the statutory purposes of

sentencing.” The district court heard statements from Rodriguez-Correa regarding

his family situation, his personal characteristics, his need for medical care, and his

lack of education. To the extent that Rodriguez-Correa argues that the district

court failed to give sufficient weight to his factors asserted in support of a

reasonable sentence, such as his personal circumstances, that decision is within the

district court’s discretion. United States v. Williams, 

, 1354-55

(11th Cir. 2006). Moreover, counsel for Rodriguez-Correa asked the district court

for a sentence lower than the guideline range, “or at a minimum at the low end of

the guidelines.” In fact, Rodriguez-Correa received a sentence at the low end of

the guideline range. In addition to being at the bottom of the advisory guideline

                                           7
range, Rodriguez-Correa’s 46-month (3 years, 10 months) sentence is well below

the statutory maximum of 20 years’(240 months) imprisonment. 8 U.S.C.

§ 1326(b)(2). See United States v. Martinez, 

, 1322 (11th Cir. 2006)

(concluding that 87-month sentence was reasonable for violating § 1326(b)(2)

because, among other things, the sentence was “almost one-third the length of the

twenty-year statutory maximum sentence”), cert. denied, 

(2006).

Based on this record, Rodriguez-Correa has not met the burden of establishing the

unreasonableness of his sentence. Accordingly, because the district court

considered the factors outlined by § 3553(a), the sentence it imposed was

reasonable.

      Upon review of the record, and upon consideration of the briefs of the

parties, we discern no reversible error.

      AFFIRMED.




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