     Case: 11-10773     Document: 00511859793         Page: 1     Date Filed: 05/17/2012




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

                                                                            FILED
                                                                           May 17, 2012
                                     No. 11-10773
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SIXTO FERNANDEZ-AVINA,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:11-CR-48-1


Before SMITH, GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:*
        Sixto Fernandez-Avina (Fernandez) appeals from the 96-month above-
guidelines sentence imposed by the district court following his conviction for
illegal reentry. He argues that the district court’s written judgment specifying
that the sentence in the instant case was to run consecutively to Fernandez’s
then-unimposed state sentence conflicted with the oral pronouncement of
sentence, which was silent regarding consecutiveness.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10773

      If there is a conflict between the oral and written sentences, the oral
sentence prevails. See United States v. Garza, 448 F.3d 294, 302 (5th Cir. 2006).
“However, if there is an ambiguity between the two sentences, the entire record
must be examined to determine the district court’s true intent.” Id. (internal
quotation marks and citation omitted). “When the oral pronouncement of
sentence does not resolve whether a sentence runs consecutively or concurrently,
the clearly expressed intent of the sentencing judge discerned from the entire
record controls.” United States v. McAfee, 832 F.2d 944, 946 (5th Cir. 1987); see
also United States v. Tafoya, 757 F.2d 1522, 1529 (5th Cir. 1985) (holding that
the written judgment clarified, rather than conflicted with, the oral sentence
when “the oral pronouncement [was] silent and the immediately-consequent
written sentence clearly state[d] the district court’s intent to impose consecutive
sentences”). Moreover, terms of imprisonment that are imposed at different
times are presumed to run consecutively to one another when the district court
is silent on the matter. See 18 U.S.C. § 3584(a). Accordingly, even if de novo
review applies, we conclude that the written judgment issued shortly after the
oral pronouncement merely clarified, and clearly expressed, the district court’s
intent at sentencing. See McAffee, 832 F.2d at 946.
      Fernandez properly concedes that his argument that § 3584(a) did not
authorize the district court to impose his sentence to run consecutively to his
then-anticipated state court sentence is foreclosed. See Setser v. United States,
132 S. Ct. 1463, 1466-73 (2012); United States v. Brown, 920 F.2d 1212, 1216-17
(5th Cir. 1991), abrogated on other grounds by United States v. Candia, 454 F.3d
468, 472-73 (5th Cir. 2006).
      Assuming, without deciding, that Fernandez adequately preserved his
reasonableness challenges below, we review his sentence for reasonableness first
by ensuring that the district court committed no significant procedural error.
Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Cisneros-Gutierrez,
517 F.3d 751, 764 (5th Cir. 2008); see also United States v. Candia, 454 F.3d 468,

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                                  No. 11-10773

472-73 (5th Cir. 2006) (reviewing consecutive nature of sentence imposed for
reasonableness). If the district court’s sentencing decision is procedurally sound,
we review the substantive reasonableness of the sentence under an abuse of
discretion standard. See Gall, 552 U.S. at 51. A sentence outside the Guidelines
is unreasonable if it “(1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
      Fernandez’s contention that his unscored convictions and extensive
criminal history were an unsound basis for the upward variance lacks merit. See
United States v. Zuniga-Peralta, 442 F.3d 345, 347-48 (5th Cir. 2006) (upholding
upward departure based on uncounted crimes and repeated illegal reentries).
As for the substantive reasonableness of the sentence, which was 25 months
above the top of the applicable guidelines range, this court has affirmed greater
variances. See, e.g., Smith, 440 F.3d at 705-06, 708-10 (upholding a 60-month
sentence when the upper end of the guidelines range was 27 months). Because
the district court cited fact-specific reasons for imposing the sentence and its
reasons adequately reflected consideration of the § 3553(a) factors—including
Fernandez’s history and characteristics, the need to deter future crimes by
Fernanadez, and the need to protect the public—its upward variance did not
result in a substantively unreasonable sentence. See id. Although Fernandez
argues that the § 3553(a) factors do not support the imposition of a consecutive
sentence, we decline his invitation to reweigh those factors. See United States
v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (“[T]he sentencing
judge is in a superior position to find facts and judge their import under
§ 3553(a) with respect to a particular defendant.”).
      AFFIRMED.




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