* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50734

Summary Calendar

UNITED STATES OF AMERICA

Plaintiff-Appellee

v.

JOSE ILARAZA, true name Jose Herminio Ilaraza

Defendant-Appellant

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:06-CR-74-ALL

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Jose Ilaraza pleaded guilty to conspiracy with intent to distribute at least

50 grams of methamphetamine and was sentenced to 168 months of

imprisonment and five years of supervised release. Ilaraza argues that his

sentence, which was within the recommended guidelines range, was

substantively unreasonable because it was greater than necessary to achieve the

sentencing goals set forth in 18 U.S.C. § 3553(a).

United States Court of Appeals

Fifth Circuit

F I L E D

September 19, 2008

Charles R. Fulbruge III

Clerk
No. 07-50734

2

An appellate court’s review of a sentence must start with the issue

whether the district court committed any “significant procedural error, such as

failing to calculate (or improperly calculating)the Guidelines range,treating the

Guidelines as mandatory, failing to consider the [18 U.S.C.] § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence.” Gall v. United States, 128 S. Ct. 586, 597 (2007).

If the sentencing decision is procedurally sound, the appellate court then

considers “the substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard.” Id. Because Ilaraza did not challenge the

substantive reasonableness of his sentence in the district court,this issue should

be reviewed for plain error. See United States v. Peltier, 505 F.3d 389, 391-92

(5th Cir. 2007), cert denied __ S. Ct. ___, 2008 WL 227315 (June 23, 2008) (No.

07-8978). Ilaraza concedes that plain error review applies but seeks to preserve

the issue of the applicable standard of review for Supreme Court review. 

Ilaraza has not shown that the district court plainly erred in imposing a

sentence of 168 months of imprisonment. Ilaraza’s within-guidelines sentence

is entitled to a rebuttable presumption of reasonableness. See United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006); Rita v. United States, 127 S. Ct. 2456,

2462 (2007). Ilaraza’s contention that his sentence is unreasonable because the

district court failed to comply with its intention—noted in the Statement of

Reasons—to sentence him in the middle of the guideline range is unavailing.

Ilaraza has not shown that the court did not understand 168 months to be a

sentence in the middle of the guideline range; he thus has not shown that the

notation in the Statement of Reasons contradicts the court’s actual sentencing

intention. Moreover, to the extent that the Statement of Reasons conflicts with

the court’s pronouncement at sentencing, the court’s oral pronouncement

controls. See United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).

Ilaraza also argues that the district court accorded improper weight to his

criminal history to determine the particular guidelines sentence thatitimposed.
No. 07-50734

3

Given that a defendant’s criminal history is a factor that a court may consider

in imposing a non-guidelines sentence, see United States v. Smith, 440 F.3d 704,

709 (5th Cir. 2006), the district court did not err in using Ilaraza’s criminal

history to determine where he should be sentenced within the applicable

guidelines range. See U.S. SENTENCING GUIDELINES MANUAL § 1B1.4 (2006). In

fact, § 3553 requires the court to consider, among other things, the history and

characteristics of a defendant and the need for the sentence imposed to protect

the public from further crimes of the defendant. See 18 U.S.C. § 3553(a)(1),

(2)(C). In the instant case, Ilaraza had an extensive criminal history, including

some offenses that were unaccounted for in his guidelines sentence, and his prior

offenses were salient in the parties’ sentencing arguments. Thus, the district

court’s consideration of Ilaraza’s criminal history to determine a specific

guidelines sentence was not plainly erroneous.

Ilaraza further argues that a sentence at the bottom of the guidelines

range—i.e., 140 months—would have been sufficient to achieve the sentencing

objectives of § 3553(a). However, there is nothing in the record to support

Ilaraza’s argument and, in any event, “[t]hat an appellate court might

reasonably have concluded that a different sentence was appropriate is

insufficient to justify reversal of the district court.” Gall, 128 S. Ct. at 597.

Likewise, his contention that the sentencing court failed to identify any other

circumstances that suggested a sentence above 140 months’ imprisonment was

necessary is without merit. Because the district court imposed a sentence within

the guidelines range, a lengthy explanation ofthe sentence was not required and

this court will infer that the district court considered all the factors for a fair

sentence set forth the Guidelines. See Rita, 127 S. Ct. at 2468. Accordingly,

Ilaraza has not shown that the sentence imposed by the district court constituted

error, plain or otherwise. See Gall, 128 S. Ct. at 597; United States v. Nikonova,

480 F.3d 371, 376 (5th Cir.), cert. denied, 128 S. Ct. 163 (2007).

AFFIRMED.