                                                                   [DO NOT PUBLISH]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.

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      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,

                                            5
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

                                          6
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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