IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-10773

Summary Calendar

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 aboveguidelines 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. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 17, 2012

Lyle W. Cayce

Clerk

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). Ifthe 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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