United States v. Guadalupe De Los Santos

Case: 15-40723 Document: 00513641366 Page: 1 Date Filed: 08/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 15-40723
Fifth Circuit
FILED
Summary Calendar August 17, 2016
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
GUADALUPE DE LOS SANTOS,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:14-CR-1556-1
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM: *
Guadalupe De Los Santos appeals the sentence imposed following his
guilty plea conviction for illegal reentry after deportation in violation of 8
U.S.C. § 1326. The district court sentenced him to 40 months in prison, which
was above the recommended guidelines range of 10-16 months.
De Los Santos contends that his prior drug-related convictions were not
valid bases for a U.S.S.G. § 5K2.0 upward departure and that the district court
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 15-40723 Document: 00513641366 Page: 2 Date Filed: 08/17/2016
No. 15-40723
did not properly depart upward pursuant to U.S.S.G. § 4A1.3 because the
sentence was not based upon an underrepresentation of his criminal history.
De Los Santos also argues that the extent of the departure was unreasonable
because it gave too much weight to his prior drug convictions.
We conclude that the sentence was not based upon an upward departure
pursuant to § 4A1.3. Accordingly, De Los Santos’s arguments addressing
§ 4A1.3 are unavailing. Moreover, while the district court’s Statement of
Reasons states that the sentence was based upon an upward departure
pursuant to § 5K2.0, the district court’s oral pronouncement of the sentence
indicates that the sentence was intended as an upward variance. “[W]hen
there is a conflict between a written sentence and an oral pronouncement, the
oral pronouncement controls.” United States v. Martinez, 250 F.3d 941, 942
(5th Cir. 2001). We therefore conclude that the sentence was a variance, not a
§ 5K2.0 departure. See id.; see also United States v. Pullium, 204 F. App’x 451,
452 (5th Cir. 2006); United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir.
2003).
We review whether a sentence is reasonable under an abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). In
performing this review, we “first ensure that the district court committed no
significant procedural error” and “then consider the substantive
reasonableness of the sentence imposed . . . .” Id.
De Los Santos’s criminal history is one of the factors that the district
court could consider in imposing the non-guidelines sentence. See United
States v. Lopez-Salas, 513 F.3d 174, 180-81 (5th Cir. 2008). Accordingly, the
district court did not abuse its discretion in varying upward based upon De Los
Santos’s prior federal and state drug convictions. See United States v. Herrera-
Garduno, 519 F.3d 526, 530-31 (5th Cir. 2008); Lopez-Salas, 513 F.3d at 180-
2
Case: 15-40723 Document: 00513641366 Page: 3 Date Filed: 08/17/2016
No. 15-40723
81. Moreover, the upward variance in this case is well within the range of
upward variances that we have upheld. See United States v. Gutierrez, 635
F.3d 148, 155 n.34 (5th Cir. 2011) (collecting cases). The district court’s
judgment is AFFIRMED.
3