                    IN THE COURT OF APPEALS OF IOWA

                                   No. 14-0389
                             Filed October 15, 2014

STATE OF IOWA,
     Plaintiff-Appellee,

vs.

ORLANDO EUGENE THOMPSON,
     Defendant-Appellant.
________________________________________________________________

      Appeal from the Iowa District Court for Scott County, Mary E. Howes,

Judge.



      Orlando Thompson appeals following his guilty plea, claiming the district

court considered unproved conduct when imposing sentence. AFFIRMED.




      Mark C. Smith, State Appellate Defender, and Maria Ruhtenberg,

Assistant Appellate Defender, for appellant.

      Thomas J. Miller, Attorney General, Heather Ann Mapes, Assistant

Attorney General, Michael J. Walton, County Attorney, and Amy Devine and

Melisa Zaehringer, Assistant County Attorneys, for appellee.



      Considered by Mullins, P.J., and Bower and McDonald, JJ.
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MCDONALD, J.

      Orlando Thompson pleaded guilty to possession of marijuana with the

intent to deliver as a habitual offender, in violation of Iowa Code sections

124.401(1)(d), 902.8, and 902.9(3) (2013).      He was sentenced to a term of

incarceration not to exceed fifteen years.       On appeal, he challenges his

sentence, claiming the district court considered unproved conduct when imposing

sentence.

      The district court’s sentence is cloaked with a strong presumption in its

favor, and we will not reverse its sentence absent an abuse of discretion. See

State v. Formaro, 638 N.W.2d 720, 724 (Iowa 2002). We afford the strong

presumption of regularity to the sentencing court due to the great confidence we

place in our judges to exercise their discretion appropriately. See State v. Sailer,

587 N.W.2d 756, 764 (Iowa 1998). To establish an abuse of discretion, the

defendant must show the court exercised its discretion “on grounds or for

reasons that were clearly untenable or unreasonable.” Formaro, 638 N.W.2d at

724. Where the defendant alleges the sentencing court took into consideration

an impermissible sentencing factor, such as unproved conduct or unprosecuted

offenses, the presumption of regularity afforded the sentencing court can be

overcome where there is “clear evidence” the sentencing court actually relied on

the impermissible factor in exercising its broad sentencing discretion.        See

Formaro, 638 N.W.2d at 724; Sailer, 587 N.W.2d at 764. We will neither assume

nor infer a judge relied on an impermissible factor without clear evidence in the
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record to the contrary. See Formaro, 638 N.W.2d at 724; see also Sailer, 587

N.W.2d at 764.

      There is not “clear evidence” the district court relied on an impermissible

sentencing factor. At the time of sentencing, Thompson’s counsel and the district

court both referred to Thompson’s prior federal drug conviction for possession of

crack cocaine. The district court characterized the quantity involved in that case

as “significant” based on the ninety-month sentence imposed. Thompson claims

the district court abused its discretion in characterizing the amount of drugs as

“significant” because the record did not establish the exact quantity of drugs

supporting his federal conviction. While Thompson may disagree with the district

court’s characterization of the quantity involved in the prior matter, the district

court’s statement is not evidence it considered an improper sentencing factor—

Thompson was, in fact, convicted of the offense. Nowhere in the colloquy is

there a reference to “additional, unproven, and unprosecuted charges.”         See

Formaro, 638 N.W.2d at 725; see also State v. Black, 324 N.W.2d 313, 315

(Iowa 1982) (stating “[w]e will set aside a sentence and remand a case . . . if the

sentencing court relied upon charges of an unprosecuted offense” (emphasis

added)). Thompson’s challenge to his sentence thus fails.

      AFFIRMED.
