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

                                                                   FILED
                                                                September 19, 2008
                                No. 07-50734
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

JOSE ILARAZA, true name Jose Herminio Ilaraza

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Western District of Texas
                          USDC No. 6:06-CR-74-ALL


Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Jose Ilaraza pleaded guilty to conspiracy with intent to distribute at least
50 grams of methamphetamine and was sentenced to 168 months of
imprisonment and five years of supervised release. Ilaraza argues that his
sentence, which was within the recommended guidelines range, was
substantively unreasonable because it was greater than necessary to achieve the
sentencing goals set forth in 18 U.S.C. § 3553(a).



      *
      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should not be published and is not precedent except under the limited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.
                                  No. 07-50734

      An appellate court’s review of a sentence must start with the issue
whether the district court committed any “significant procedural error, such as
failing to calculate (or improperly calculating) the Guidelines range, treating the
Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).
If the sentencing decision is procedurally sound, the appellate court then
considers “the substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.”    Id.   Because Ilaraza did not challenge the
substantive reasonableness of his sentence in the district court, this issue should
be reviewed for plain error. See United States v. Peltier, 505 F.3d 389, 391-92
(5th Cir. 2007), cert denied __ S. Ct. ___, 2008 WL 227315 (June 23, 2008) (No.
07-8978). Ilaraza concedes that plain error review applies but seeks to preserve
the issue of the applicable standard of review for Supreme Court review.
      Ilaraza has not shown that the district court plainly erred in imposing a
sentence of 168 months of imprisonment. Ilaraza’s within-guidelines sentence
is entitled to a rebuttable presumption of reasonableness. See United States v.
Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v. United States, 127 S. Ct. 2456,
2462 (2007). Ilaraza’s contention that his sentence is unreasonable because the
district court failed to comply with its intention—noted in the Statement of
Reasons—to sentence him in the middle of the guideline range is unavailing.
Ilaraza has not shown that the court did not understand 168 months to be a
sentence in the middle of the guideline range; he thus has not shown that the
notation in the Statement of Reasons contradicts the court’s actual sentencing
intention. Moreover, to the extent that the Statement of Reasons conflicts with
the court’s pronouncement at sentencing, the court’s oral pronouncement
controls. See United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).
      Ilaraza also argues that the district court accorded improper weight to his
criminal history to determine the particular guidelines sentence that it imposed.

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                                  No. 07-50734

Given that a defendant’s criminal history is a factor that a court may consider
in imposing a non-guidelines sentence, see United States v. Smith, 440 F.3d 704,
709 (5th Cir. 2006), the district court did not err in using Ilaraza’s criminal
history to determine where he should be sentenced within the applicable
guidelines range. See U.S. SENTENCING GUIDELINES MANUAL § 1B1.4 (2006). In
fact, § 3553 requires the court to consider, among other things, the history and
characteristics of a defendant and the need for the sentence imposed to protect
the public from further crimes of the defendant. See 18 U.S.C. § 3553(a)(1),
(2)(C). In the instant case, Ilaraza had an extensive criminal history, including
some offenses that were unaccounted for in his guidelines sentence, and his prior
offenses were salient in the parties’ sentencing arguments. Thus, the district
court’s consideration of Ilaraza’s criminal history to determine a specific
guidelines sentence was not plainly erroneous.
      Ilaraza further argues that a sentence at the bottom of the guidelines
range—i.e., 140 months—would have been sufficient to achieve the sentencing
objectives of § 3553(a). However, there is nothing in the record to support
Ilaraza’s argument and, in any event, “[t]hat an appellate court might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 128 S. Ct. at 597.
Likewise, his contention that the sentencing court failed to identify any other
circumstances that suggested a sentence above 140 months’ imprisonment was
necessary is without merit. Because the district court imposed a sentence within
the guidelines range, a lengthy explanation of the sentence was not required and
this court will infer that the district court considered all the factors for a fair
sentence set forth the Guidelines. See Rita, 127 S. Ct. at 2468. Accordingly,
Ilaraza has not shown that the sentence imposed by the district court constituted
error, plain or otherwise. See Gall, 128 S. Ct. at 597; United States v. Nikonova,
480 F.3d 371, 376 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007).
      AFFIRMED.

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