United States v. Luis Felipe Rosado-Sabido

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10321 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 17, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-00314-TWT-CCH-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellee,
versus
LUIS FELIPE ROSADO-SABIDO,
lllllllllllllllllllllllllllllllllllllll l Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(October 17, 2011)
Before HULL, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Luis Felipe Rosado-Sabido appeals his 24-month sentence, imposed after he
pled guilty to one count of reentry of a deported alien in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). On appeal, Rosado-Sabido argues that the district court
erred in finding that his previous conviction for receipt of stolen property
constituted an aggravated felony, that the district court should not have aggregated
his sentences, and that his sentence was substantively unreasonable. We affirm.
Rosado-Sabido first argues that his previous conviction for receipt of stolen
property was not an aggravated felony and thus the conviction should not be used
to enhance his sentence under U.S.S.G. § 2L1.2. Rosado-Sabido contends that
the court did not sentence him to, and he could not have served, 365 days in jail
beginning around May 1987 because he was deported to Mexico as early as
September 1987.
We review a district court’s factual findings for clear error. United States v.
Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). The district court’s finding is
clearly erroneous when our review of the evidence leaves us “with the definite and
firm conviction that a mistake has been committed.” United States v. Foster, 155
F.3d 1329, 1331 (11th Cir. 1998). If the district court’s weighing of the evidence
between two possible interpretations was plausible, we will not disturb the district
court’s findings. Id.2
The Sentencing Guidelines require that, if a defendant was previously
deported after a conviction for an aggravated felony, the offense level should be
increased by eight. U.S.S.G. § 2L1.2(b)(1)(C). For purposes of § 2L1.2, an
aggravated felony is defined in 8 U.S.C. § 1101(a)(43)(G), the Immigration and
Nationality Act. U.S.S.G. § 2L1.2, comment. (n.3). Section 1101(a)(43)(G)
defines an aggravated felony as including a “theft offense (including receipt of
stolen property) or burglary offense for which the term of imprisonment [is] at
least one year.” 8 U.S.C. §1101(a)(43)(G).
The government produced a sentencing order in the district court that shows
that Rosado-Sabido was sentenced to an additional 365 days for his 1986
conviction. In addition, we have held that although the defendant did not serve his
entire sentence because he was deported, the length of the sentence imposed
determined whether his prior conviction would constitute and aggravated felony.
United States v. Maldonado-Ramirez, 216 F.3d 940, 943 (11th Cir. 2000).
Therefore, the district court did not err in finding that Rosado-Sabido’s prior
conviction, for which the sentence imposed exceeded one year, was an aggravated
felony that subjected him to an increased sentence for his illegal reentry offense.
Rosado-Sabido next argues that the district court erred by aggregating the
receipt of stolen property’s original sentence of 66 days, imposed in 1986, with the
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second sentence of 365 days, imposed in 1987. Specifically, Rosado-Sabido
argues that ambiguity exists regarding whether the Immigration and Nationality
Act, which references a “term of imprisonment,” applies, or whether the
application note to § 2L1.2, which defines the term “sentence imposed,” applies.
He argues that while it is clear under § 2L1.2 that “sentence imposed” includes
sentence terms after probation revocation, the Immigration and Nationality Act
does not explicitly state, with regard to a “term of imprisonment,” whether
probation revocation sentences are included.
We review a district court’s legal interpretations of the Sentencing
Guidelines de novo. United States v. Zaldivar, 615 F.3d 1346, 1350 (11th Cir.
2010), cert. denied, 131 S.Ct. 959 (2011). However, when an appellant raises an
issue for the first time on appeal, we apply the plain error standard of review.
United States v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). The appellant
must show that an error occurred, that the error was plain, and that it affected his
substantial rights. Id. Where a rule or statute plainly requires a court to do
something, it is plain error for the court not to do so. United States v. Lejarde-
Rada, 319 F.3d 1288, 1290 (11th Cir. 2003). But, where the explicit language of a
rule or statute does not resolve an issue, and neither we nor the Supreme Court has
resolved the issue, there can be no plain error. Id. at 1291.
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The Immigration and Nationality Act, which defines an aggravated felony,
states:
Any reference to a term of imprisonment or a sentence with respect to
an offense is deemed to include the period of incarceration or
confinement ordered by a court of law regardless of any suspension of
the imposition or execution of that imprisonment or sentence in whole
or in part.
8 U.S.C. § 1101(a)(48)(B). The Immigration and Nationality Act does not
specifically note whether a “term of imprisonment” includes sentences imposed
because of probation revocation. U.S.S.G. § 2L1.2 defines a “sentence imposed”
as including “any term of imprisonment given upon revocation of probation,
parole, or supervised release.” U.S.S.G. § 2L1.2, comment. (n.1).
Even if Rosado-Sabido were able to demonstrate that the district court erred
by relying on the “sentence imposed” definition under the comment to § 2L1.2
rather than the unclear “term of imprisonment” definition under the Immigration
and Nationality Act, such reliance would not constitute plain error because neither
we nor the Supreme Court has resolved that issue definitively. See Lejarde-Rada,
319 F.3d at 1291. While the commentary to § 2L1.2 specifically requires that
courts look to the Immigration and Nationality Act for the definition of an
aggravated felony, no rule or statute plainly requires a court to use the “term of
imprisonment” definition instead of the “sentence of imprisonment” definition,
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and there can be no plain error. See id. at 1290. Accordingly, the district court did
not plainly err in this instance.
Finally, Rosado-Sabido argues that the 24-month sentence was greater than
necessary to achieve the sentencing goals enumerated in 18 U.S.C. § 3553(a).
Particularly, he argues that the district court overemphasized deterrence, should
have considered that he is assimilated into the United States, and that his sentence-
enhancing conviction was both minor and stale.
When reviewing the reasonableness of a sentence, we apply an abuse of
discretion standard. Gall v. United States, 552 U.S. 38, 56, 128 S. Ct. 586, 600
(2007). The sentence the district court imposes must be both procedurally and
substantively reasonable. Id. at 51, 128 S.Ct. at 597. If there is no claim of
procedural error, we review for substantive error. See id. (holding that if the
sentence is procedurally sound, the appellate court should then consider the
substantive reasonableness of the sentence). We review the totality of the facts
and circumstances to gauge for substantive error. United States v. Irey, 612 F.3d
1160, 1189-90 (11th Cir. 2010), cert denied, 131 S. Ct. 1813 (2011). A sentence is
substantively unreasonable if it fails to carry out the statutory purposes of
sentencing under § 3553(a). United States v. Dean, 635 F.3d 1200, 1209 (11th
Cir. 2011), petition for cert. filed, (U.S. June 9, 2011) (No. 10-10987). We have
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noted that a sentence that is well below the statutory maximum is likely
reasonable. United States v. Valnor, 451 F.3d 744, 751-52 (11th Cir. 2006). We
will not presume a within-guidelines range to be reasonable, but we would
ordinarily expect such a sentence to be reasonable. United States v. Hunt, 526
F.3d 739, 746 (11th Cir. 2008).
The district court explicitly stated that it had considered:
The sentencing factors set forth in Title 18 U.S. Code 3553(a),
specifically the nature and circumstances of the offense, the history
and characteristics of the defendant, the need for the sentence
imposed to reflect the seriousness of the offense and promote respect
for the law, and the need to avoid unwarranted sentencing disparities.
The district court considered the statutory purposes of sentencing under § 3553(a),
and the reasonableness of the sentence is further demonstrated because the 24-
month sentence is well below the 20-year maximum. Valnor, 451 F.3d at 751-52.
Finally, because the 24-month sentence is within the guidelines range, we can
expect that the sentence is reasonable. See Hunt, 526 F.3d at 746.
Upon review of the record and consideration of the parties’ brief, we affirm.
AFFIRMED.
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