                                                                  [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS
                                                                         FILED
                               FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                                ________________________ ELEVENTH CIRCUIT
                                                                     NOV 17, 2010
                                       No. 10-11317                   JOHN LEY
                                   Non-Argument Calendar                CLERK
                                 ________________________

                             D.C. Docket No. 3:09-cr-00109-LC-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                          Plaintiff-Appellee,

                                            versus

IVAN DAVID JIMENEZ-RODRIGUEZ,
a.k.a. Hector Juarez-Gonzalez,
a.k.a. Ivan David Rodriguez-Jimenez,
a.k.a. Hector Juares-Gonzales,

                                                               Defendant-Appellant.

                                ________________________

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

                                     (November 17, 2010)

Before EDMONDSON, MARTIN and FAY, Circuit Judges.

PER CURIAM:
      Ivan Jimenez-Rodriguez appeals his 24-month sentence for illegal reentry of

a previously deported alien, in violation of 8 U.S.C. § 1326 and 6 U.S.C. §§ 202,

557. He argues that the district court erred in finding that his prior guilty plea and

deferred judgment in a forgery case in Iowa state court constituted a previous

“conviction for any other felony” for purposes of U.S.S.G. § 2L1.2(b)(1)(D). The

government responds that any such error in Jimenez-Rodriguez’s offense-level

calculation was harmless.



                                          I.



      Jimenez-Rodriguez was apprehended by immigration officials and removed

to Mexico on two occasions in 2001. In August 2001, during his second period of

illegal presence in the United States, he pled guilty to a forgery charge in Iowa

state court. In light of his then-pending second deportation, the Iowa court

deferred judgment, imposed a suspended fine and unsupervised probation, and

warned him not to reenter the country without permission. Nevertheless, Jimenez-

Rodriguez was apprehended within the U.S. twice more in 2002 and was again

removed to Mexico. He entered the country for the fifth and final time in 2003.




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      Jimenez-Rodriguez was arrested in 2009 and pled guilty to the instant

charge of illegal reentry. In calculating his offense level, the probation office

determined that the Iowa guilty plea subjected him to a four-level enhancement for

having previously been removed after incurring a “conviction for any other

felony,” pursuant to § 2L1.2(b)(1)(D).



      At the sentencing hearing, the court heard argument as to whether the Iowa

case met the definition of a “conviction” for purposes of the enhancement.

Jimenez-Rodriguez argued that, absent the imposition of some form of punishment

or restraint on liberty, a deferred judgment does not meet the definition of a

“conviction” for purposes of the mandatory minimum sentence, 8 U.S.C. §§ 1326,

1101(a)(48), and the guideline enhancement should be interpreted consistently

with the statutory penalties. He took the position that his unsupervised probation

and suspended fine did not meet that standard.



      The district court found that “the plea of guilty and ‘a’ sentence is

sufficient” to constitute a conviction for purposes of § 2L1.2(b)(1)(D). The court

then heard argument from both parties on the 18 U.S.C. § 3553(a) factors and

found that, because of the aggravating factor of Jimenez-Rodriguez’s four

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previous illegal entries, the sentence it imposed would be the same regardless of

its ruling on the four-level enhancement. The court sentenced him to 24 months’

imprisonment, noting in particular the need to deter others from similar criminal

conduct.



                                         II.



      A district court must begin the sentencing process by correctly calculating

the applicable guideline range. Gall v. United States, 552 U.S. 38, 49, 128 S.Ct.

586, 596, 169 L.Ed.2d 445 (2007). Likewise, we review the reasonableness of a

sentence in part by “ensur[ing] that the district court committed no significant

procedural error, such as failing to calculate (or improperly calculating) the

Guidelines range.” Id. at 51, 128 S.Ct. at 597. We review the interpretation and

application of the Guidelines de novo and the underlying factual findings for clear

error. United States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007).



      If the district court errs in applying the Guidelines, we must nevertheless

ignore the errors if they were harmless. Id. at 634 (citing United States v.

Mathenia, 409 F.3d 1289, 1291-92 (11th Cir. 2005)). “[R]emand is required only

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if the sentence was imposed as a result of an incorrect application of the

Guidelines.” Williams v. United States, 503 U.S. 193, 202-03, 112 S.Ct. 1112,

1120, 117 L.Ed.2d 341 (1992). “[A] court of appeals must decide whether the

district court would have imposed the same sentence had it not relied upon the

invalid factor or factors.” Id. at 203, 112 S.Ct. at 1120. “If the party defending the

sentence persuades the court of appeals that the district court would have imposed

the same sentence absent the erroneous factor, then a remand is not required . . .

and the court of appeals may affirm the sentence as long as it is also satisfied that

the [sentence] is reasonable . . . .” Id., 112 S.Ct. at 1121. In deciding whether the

sentence is reasonable, “we must assume that there was a [G]uidelines error—that

the [G]uidelines issue should have been decided in the way the defendant argued

and the advisory range reduced accordingly—and then ask whether the final

sentence resulting from consideration of the § 3553(a) factors would still be

reasonable.” United States v. Keene, 470 F.3d 1347, 1349 (11th Cir. 2006).



      Jimenez-Rodriguez’s offense of conviction, 8 U.S.C. § 1326, ordinarily

carries a statutory maximum penalty of 24 months. § 1326(a). That penalty is

increased if the defendant had previously been convicted of a felony.

§ 1326(b)(1). For purposes of this statute, a “conviction” is

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      a formal judgment of guilt of the alien entered by a court or, if

      adjudication of guilt has been withheld, where –



            (i) a judge or jury has found the alien guilty or the alien has

            entered a plea of guilty or nolo contendere or has admitted

            sufficient facts to warrant a finding of guilt, and



            (ii) the judge has ordered some form of punishment, penalty, or

            restraint on the alien’s liberty to be imposed.




8 U.S.C. § 1101(a)(48)(A).



      Similarly, U.S.S.G. § 2L1.2(b)(1)(D) applies a four-level enhancement if the

defendant previously was deported after “a conviction for any other felony.” Yet,

while the Application Notes define the term “felony” and they specify that an

“aggravated felony” should be given the meaning of that term in § 1101(a)(43),

see U.S.S.G. § 2L1.2, comment. (nn.2, 3(A)), they do not define “conviction” or

                                          6
indicate whether that term should be defined as in § 1101(a)(48).



      Here, we need not resolve whether the statutory definition of “conviction”

should be applied to the § 2L1.2(b)(1)(D) enhancement, because the government

is correct that any error in this regard was harmless. If the court had not applied

the enhancement, Jimenez-Rodriguez would have had an offense level of 8 and a

sentencing range of 10-16 months. Thus, his 24-month sentence would have

constituted an 8-month upward variance. In imposing his sentence, the district

court discussed the § 3553(a) factors, stated that the sentence would have been the

same regardless of the contested enhancement, and clearly identified the

aggravating factor of his four previous illegal entries as the primary reason that the

Guideline issue did not affect its decision. An eight-month variance was not

unreasonable under the circumstances, and, thus, remand is not required. See

Williams, 503 U.S. at 202-03, 112 S.Ct. at 1120-21; Keene, 470 F.3d at 1349.



      Accordingly, we affirm Jimenez-Rodriguez’s sentence.



      AFFIRMED.




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