### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 fr o m t he 96-month aboveguidelines sentence imposed by the district court following his c o nvi c tion for illegal reentry. He argues that the district court’s written judgment specifying that the sentence in the instant case was to run con s ecutively to Fernandez’s then-unimposed state senten c e conflicted with the oral pronouncement of sentence, which was silent regarding consecutiveness. U n i te d S ta te s C o u rt o f A p p ea l s F i ft h C i rc u i t 

### F I L E D May17 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 11-10773 Document: 00511859793 Page: 1 Date Filed: 05/17/2012No. 11-10773

If there is a conflict be t w e e n t he 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 b e e xamined to determine the district court’s true intent.” Id. (internal quotation marks and c i t a t i o n omitted). “When the oral pronouncement of sentence does not resolve whether a sentence runs c o n s e c utive ly o r c oncurrently, the clearly expressed intent of the sentencing judge discerned f r o m th e 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. 1 985) (holding that the written judgment c l a rified, rather than conflicted with, the oral sentence when “t he 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 impris o n m e n t 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 t h a t his argument that § 3584(a) did not authorize the district cour t t o 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 pr eserved his reasonablene s s ch all e n ge s b e lo w , w e r eview his sentence for reasonableness first by ensuring that the district court committ e d n o 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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472-73 (5th Cir. 2006) (reviewing consecutive nature of sentence imposed for reasonable n e s s)

. I f th e di s trict court’s sentencing decision is procedurally sound,

w e review the substantive reasonableness of the sentence under an ab u s e o f 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 clea r e rror of judgment in balancing the sentencing factors.” United States v. Smith , 440 F.3d 704, 708 (5th Cir. 200 6). 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

u p w ard departure based on uncounted crimes and repeated illegal reentr i e s )

. As for the s ub s t a n t ive 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, 708-1 0 (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 F e r n a n d e z’s history and characteristics, the need to deter future crimes by Fernanadez, and the need to protect th e p ublic—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. Ca m p os-Maldonado , 531 F.3d 337, 339 (5th Cir. 2008) (“[T]he sentencing judge is in a superior position to find facts a n d judge their import under § 3553(a) with respect to a particular defendant.”). AFFIRMED.

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