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.

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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.