                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-3297
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                     Ruben Silva

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Arkansas - Fayetteville
                                 ____________

                              Submitted: April 3, 2017
                                Filed: July 31, 2017
                                    [Published]
                                  ____________

Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
                         ____________

PER CURIAM.

      Ruben Silva pleaded guilty to one count of being a felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court1


      1
      The Honorable Timothy L. Brooks, United States District Judge for the
Western District of Arkansas.
calculated an advisory Sentencing Guidelines range of 30–37 months, to which
neither party objected, and imposed an above-Guidelines sentence of 57 months.
Silva appeals, arguing the district court committed procedural error and imposed a
substantively unreasonable sentence. Because we disagree, we affirm the judgment
of the district court.

       Silva was in the front passenger seat of a friend’s vehicle when law
enforcement approached and told him he was under arrest. Silva immediately reached
for his waistline, where the arresting officers noticed a “visible bulge” that looked to
them like a firearm. The officers told Silva to “stop,” “not to reach for it,” and to
place his hands on his head. Silva did not comply, reaching again for his waistline.
Silva then got out of the vehicle, continued to disregard officers’ commands to stop,
and “swung his elbow toward” the head of the officer who was attempting to
handcuff him. In response, the officer struck Silva multiple times, and Silva fell to
the ground. As Silva fell, so too did a .380 caliber pistol from his waistline. A bullet
was in the chamber, the hammer was cocked, and five more bullets were in the
magazine. Later investigation established that the pistol was stolen and that Silva had
at least one prior felony conviction.

       Silva appeals his sentence, which we first review for procedural error. See
United States v. Martin, 757 F.3d 776, 779 (8th Cir. 2014). Silva argues the district
court procedurally erred by relying on a clearly erroneous fact when imposing the
sentence. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc)
(“‘Procedural error’ includes ‘failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing to consider the
§ 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to
adequately explain the chosen sentence—including an explanation for any deviation
from the Guidelines range.’” (quoting Gall v. United States, 552 U.S. 38, 51 (2007))).
In particular, Silva argues the district court imposed an above-Guidelines sentence
“based upon an incorrect determination that Mr. Silva was previously convicted of

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battering a police officer.” Silva bases this argument on language in the written
Statement of Reasons, where the district court listed “convictions for . . . battery of
police officers” as one reason for the sentence. As Silva points out, the presentence
report reflected that he had been arrested twice for this offense, but there is no
evidence in the record that he was convicted on either occasion.

       At Silva’s sentencing hearing, the district court addressed Silva’s two prior
arrests for battery of a police officer. In so doing, the district court noted there was
no “explanation as to the disposition of those charges,” and, unlike the written
Statement of Reasons, expressly described these instances as “arrests” or “charges,”
not “convictions.” When a district court’s oral sentence conflicts with the written
judgment, “the oral sentence controls.” United States v. Foster, 514 F.3d 821, 825
(8th Cir. 2008). Silva does not assert that the court’s oral statements at sentencing are
ambiguous. See United States v. Olson, 716 F.3d 1052, 1056 (8th Cir. 2013)
(unambiguous oral sentence controls when it conflicts with written judgment;
ambiguous oral sentence requires our court to discern the district court’s intent). As
a result, we find that the district court’s “clearly announced” recognition that Silva’s
prior arrests were in fact only arrests—not convictions—prevails over a conflicting
statement in the written judgment. See id. There was no procedural error.

       Next, we review Silva’s sentence for substantive reasonableness under an
abuse of discretion standard. Martin, 757 F.3d at 779. Silva asserts the district court
committed a clear error of judgment when weighing the relevant factors at sentencing.
See United States v. Hunt, 840 F.3d 554, 558 (8th Cir. 2016) (per curiam) (“A district
court abuses its discretion when it ‘(1) fails to consider a relevant factor that should
have received significant weight; (2) gives significant weight to an improper or
irrelevant factor; or (3) considers only the appropriate factors but in weighing those
factors commits a clear error of judgment.’” (quoting Feemster, 572 F.3d at 461)).
Namely, Silva argues that the district court failed to assign sufficient weight to



                                          -3-
various mitigating circumstances and assigned improper weight to aggravating
circumstances, including Silva’s arrest history.

        We disagree. Silva argued at sentencing that his longstanding addiction to
methamphetamine and his exposure to crime, drugs, and violence in the community
where he grew up were mitigating factors that warranted a lesser sentence. The
district court carefully considered Silva’s arguments, opining that Silva’s drug
addiction and lack of guidance as a youth were likely the primary catalysts for his
extensive criminal history. But the court also described Silva’s dangerous conduct
at the time of his arrest as “extraordinarily aggravating,” and expressed concern about
Silva’s multiple prior convictions and the failure of prior sentences to deter his
criminal conduct. The district court acted within its broad discretion when it
concluded that “the aggravating so far outweighs the mitigating that it is compelled
to vary upward from the guideline range.” See United States v. David, 682 F.3d
1074, 1077 (8th Cir. 2012) (review of district court’s weighing of sentencing factors
when imposing upward variances for abuse of discretion); United States v. Farmer,
647 F.3d 1175, 1180 (8th Cir. 2011) (“A district court’s choice to assign relatively
greater weight to the nature and circumstances of the offense than to the mitigating
personal characteristics of the defendant is well within its wide latitude in weighing
relevant factors.”).

      The judgment of the district court is affirmed.
                     ______________________________




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