     Case: 15-40723      Document: 00513641366         Page: 1    Date Filed: 08/17/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals

                                    No. 15-40723
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 17, 2016
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk


                                                 Plaintiff-Appellee

v.

GUADALUPE DE LOS SANTOS,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Southern District of Texas
                            USDC No. 7:14-CR-1556-1


Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
       Guadalupe De Los Santos appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation in violation of 8
U.S.C. § 1326. The district court sentenced him to 40 months in prison, which
was above the recommended guidelines range of 10-16 months.
       De Los Santos contends that his prior drug-related convictions were not
valid bases for a U.S.S.G. § 5K2.0 upward departure and that the district court


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-40723

did not properly depart upward pursuant to U.S.S.G. § 4A1.3 because the
sentence was not based upon an underrepresentation of his criminal history.
De Los Santos also argues that the extent of the departure was unreasonable
because it gave too much weight to his prior drug convictions.
      We conclude that the sentence was not based upon an upward departure
pursuant to § 4A1.3.    Accordingly, De Los Santos’s arguments addressing
§ 4A1.3 are unavailing.    Moreover, while the district court’s Statement of
Reasons states that the sentence was based upon an upward departure
pursuant to § 5K2.0, the district court’s oral pronouncement of the sentence
indicates that the sentence was intended as an upward variance. “[W]hen
there is a conflict between a written sentence and an oral pronouncement, the
oral pronouncement controls.” United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001). We therefore conclude that the sentence was a variance, not a
§ 5K2.0 departure. See id.; see also United States v. Pullium, 204 F. App’x 451,
452 (5th Cir. 2006); United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.
2003).
      We review whether a sentence is reasonable under an abuse-of-
discretion standard.    Gall v. United States, 552 U.S. 38, 51 (2007).           In
performing this review, we “first ensure that the district court committed no
significant   procedural   error”   and    “then      consider   the   substantive
reasonableness of the sentence imposed . . . .” Id.
      De Los Santos’s criminal history is one of the factors that the district
court could consider in imposing the non-guidelines sentence. See United
States v. Lopez-Salas, 513 F.3d 174, 180-81 (5th Cir. 2008). Accordingly, the
district court did not abuse its discretion in varying upward based upon De Los
Santos’s prior federal and state drug convictions. See United States v. Herrera-
Garduno, 519 F.3d 526, 530-31 (5th Cir. 2008); Lopez-Salas, 513 F.3d at 180-



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                               No. 15-40723

81. Moreover, the upward variance in this case is well within the range of
upward variances that we have upheld. See United States v. Gutierrez, 635
F.3d 148, 155 n.34 (5th Cir. 2011) (collecting cases).    The district court’s
judgment is AFFIRMED.




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