Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS June 10, 2025
Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 23-2177
SANTIAGO ADELIO CORTEZ,
Defendant - Appellant. _________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO (D.C. No. 2:23-CR-01123-MIS-1) _________________________________
Emil J. Kiehne, Assistant United States Attorney (Alexander M.M. Uballez, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
Violet N. D. Edelman, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellant. _________________________________
Before TYMKOVICH, BALDOCK, and McHUGH, Circuit Judges. _________________________________
BALDOCK, Circuit Judge. _________________________________
After his apprehension in the southern New Mexico desert in May 2023, Defendant
Cortez, a citizen of El Salvador, entered a blind plea to reentry of a removed alien
subsequent to a conviction for commission of an aggravated felony, in violation of 8 U.S.C.
§ 1326(a)(1), (b)(2). Subsection (b)(2) provides for a maximum sentence of 20 years’ Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 2
imprisonment. Based on a total offense level of 15 and a criminal history category of II,
the Presentence Investigation Report (PSR) calculated Defendant’s advisory guidelines
range as 21 to 27 months’ imprisonment. After providing proper notice and holding a
sentencing hearing, the court varied upward and sentenced Defendant to 60 months’ or five
years’ imprisonment. Defendant now appeals, arguing the district court’s sentence is both
procedurally and substantively unreasonable. Our jurisdiction arises under 18 U.S.C.
§ 3742. Having carefully reviewed both the undisputed PSR and sentencing transcript, we
affirm for reasons that follow.
I.
The historical facts are taken from the PSR. Notably, Defendant did not file a pre-
sentencing memorandum, and when asked at sentencing if he had any objections or
changes to the PSR, Defendant responded no. Defendant’s present conviction results from
what appears to be his third unlawful entry into the United States. Prior to his initial
removal in September 2005, Defendant was first convicted in 1999 of malicious destruction
of property under $300 and disorderly conduct in Maryland state court. Next, Defendant,
under the alias Santiago Gayton, was convicted in the same state court in 2001 of second
degree assault reportedly arising from an attempted robbery. Six months later, Defendant
was back before the Maryland state court as Santiago Gaitan. This time Defendant was
convicted of manslaughter and sentenced to ten years’ imprisonment with five years
suspended. The PSR reports that in 2002, Defendant “was originally charged with murder
which was amended to the offense of conviction and an additional charge of assault with a
deadly weapon was dismissed.” Defendant was released from Maryland state prison in
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August 2005 and promptly deported. Defendant, thrice convicted, returned to the United
States less than two years later.
Prior to his second removal in December 2019, Defendant was convicted in Nevada
state court in 2007 of battery with intent to commit a crime and attempted first-degree
kidnapping. Defendant spent the next 12 years in Nevada state prison. The undisputed
PSR tells us that in June 2007, according to the police report, Las Vegas police responded
to a reported sexual assault at a 7-11 convenience store. The report states Defendant was
talking to the victim, L.P., when “he grabbed her and forced her to the ground and dragged
her toward some bushes.” The report then describes the incident: “The Defendant forced
L.P.’s pants and underwear off and left them hanging around one of her legs. He choked
her and covered her mouth. The victim believed the Defendant to be intoxicated. The
victim reported she kept saying ‘no’ to the Defendant but he was too violent.” As a result
of the assault, the PSR states L.P. sustained bites to her nose and thumb and two fractured
vertebrae and was hospitalized. Upon questioning by police, Defendant initially denied
knowledge of the incident but then admitted “having sex with the victim near the bushes.”
Defendant said he had been drinking beer and could not get an erection. He denied
becoming violent with the victim. In a second interview, Defendant said he offered the
victim $20 to have sex. He admitted to biting the victim’s nose. Defendant was released
from state prison in November 2019 and again deported, only to return to the United States
a third time.
At the sentencing hearing for his present reentry offense, both the Government and
Defendant requested a within-guidelines-range sentence. The district court, however,
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expressed concern about, among other things, Defendant’s “extremely violent prior in 2007
that [he] got a very long sentence for in Nevada.” The court noted Defendant only recently
had been released from prison and deported but was already back in the United States
before a federal court. Defendant told the court he was intoxicated at the time of his 2007
offenses. Defense counsel acknowledged “at that time, [Defendant] said that he believed
that he could have done what they had accused him of[.]” Counsel explained Defendant
was intoxicated and “sometimes he does not remember what he does when he drinks.”
When the court asked whether Defendant initially admitted to assaulting L.P., counsel
responded “yes.” But the district court had a different view:
So the Presentence Report that was not objected to or corrected indicates the Defendant did not admit that he had violently sexually assaulted this woman. It said that the Defendant was interviewed and he denied knowledge of the incident originally to law enforcement. Then he admitted to having sex with the victim, but he denied being violent when the facts are extremely violent and then he said that basically he had offered the victim money for sex.
So where was [Defendant] honest about violently raping this woman?
***
He choked her. He bit her a bunch. She was bleeding when they found her. He doesn’t remember that?
The court then asked Defendant if he had anything else to say before the court
imposed sentence. Contradicting the undisputed PSR, specifically his statement to police
near the time of the incident that he had “sex with the victim,” Defendant now told the
court he never had sex with L.P., but rather suggested she falsely accused him.
I want to say something else, Your Honor. I want to say that I met her. She was under the bridge. She was smoking – she was doing drugs. I was drunk and I was also doing drugs. And we agreed on a sexual exchange for $20.
4 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 5
But I ended up not having sex with her. I didn’t touch her. I was drunk and I couldn’t do that. But she was mad because I didn’t give her the $20, and that’s why she accused me with the police. When I did the interview with the police, I told the truth to the police.
So in the craziness of being drunk, it’s true that I may have bit her or bitten her, but we did not have sex. . . . I never raped her.
When Defendant had finished speaking, the district court sentenced him to 60
months’ imprisonment. Explaining the reasons for the sentence, the district court first
adopted the PSR’s undisputed factual recitations. The court next considered Defendant’s
arguments regarding his past alcohol and drug consumption, his rehabilitation while in
Nevada state prison—including his unsupported statements that he had stopped drinking
alcohol and found religion—and his medical needs relating to a severe case of psoriasis.
Importantly, the court also considered Defendant’s argument that his criminal history was
dated. The court noted Defendant was imprisoned from 2007 until 2019 and had not had
the opportunity to commit additional violent crimes during that time.
The district court then addressed the applicable § 3553(a) factors, beginning with
the nature and circumstances of the offense and the history and characteristics of
Defendant. 18 U.S.C. § 3553(a)(1). The court noted Defendant’s history of violence and
observed that Defendant reentered the United States “fairly quickly” after serving a lengthy
sentence in Nevada for battery and attempted kidnapping, “the underlying facts of which
included a very serious allegation of sexual assault.” Turning to the need for the sentence
imposed to reflect the seriousness of the offense, promote respect for the law, and provide
punishment for the offense, id. § 3553(a)(2)(A), the court explained that an above-
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guidelines sentence was necessary to satisfy all three criteria. The court also considered
the need to afford adequate deterrence to criminal conduct as well as the need to protect
the public from further crimes perpetrated by Defendant. Id. § 3553(a)(2)(B), (C). The
court again noted that Defendant unlawfully reentered the United States a third time not
long after serving a lengthy state sentence for a violent crime. Moreover, the court’s
concern about Defendant’s behavior and willingness to continue to commit crimes in the
United States, led it to conclude an above-guidelines sentence was required to protect the
public.
The district court concluded by considering the kinds of sentences available and
“the need to avoid unwarranted sentence disparities among defendants with similar records
who have been found guilty of similar conduct.” Id. § 3553(a)(3)–(6). The court
recognized that a guidelines-range sentence of 21 to 27 months was presumptively
reasonable but found the presumption overcome by the facts of Defendant’s case. The
court further found Defendant had not shown a sentencing disparity between himself and
similarly situated defendants. In the alternative, the court found if any sentencing disparity
existed, such disparity was “warranted by the specific facts of this case.” The court
reiterated that Defendant has multiple convictions for violent crimes in the United States,
served a very long time for one of those crimes, an aggravated felony, and soon after
returned to the United States.
II.
Defendant first asserts his 60-month sentence is procedurally unreasonable solely
because the district court selected his sentence based on its finding that he “raped” L.P.
6 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 7
See Gall v. United States, 552 U.S. 38, 51 (2007) (selecting a sentence based on clearly
erroneous facts constitutes procedural error). Because Defendant failed to timely object to
the district court’s reference to Defendant’s sexual assault of L.P., as “rape,” our review is
for plain error. To establish plain error, a defendant, of course, must first establish legal
error. United States v. B.N.M., 107 F.4th 1152, 1170 (10th Cir. 2024). A factual finding
constitutes legal error only if it is clearly erroneous. United States v. Craine, 995 F.3d
1139, 1157 (10th Cir. 2021). To be clearly erroneous, a finding must be without factual
support in the record. Id. After reviewing all the evidence, we must be “left with a definite
and firm conviction that a mistake has been made.” Id. (internal quotation marks omitted).
So long as “the district court’s account of the evidence is plausible in light of the record
viewed in its entirety, the court of appeals may not reverse it even though convinced that
had it been sitting as the trier of fact, it would have weighed the evidence differently.” Id.
(internal quotation marks omitted).
Given the undisputed PSR, the district court’s statements that Defendant “raped”
L.P. do not constitute a clearly erroneous finding. As we recently observed, “[i]f a
defendant does not object to a factual allegation in a PSR, then the district court can
properly rely on that allegation as a finding of fact for purposes of sentencing.” United
States v. Vazquez-Garcia, 130 F.4th 891, 898 (10th Cir. 2025). Based on his
unsubstantiated denials, Defendant would have us ignore that by failing to object to the
PSR, he effectively admitted what the PSR alleged, namely that he (1) grabbed L.P., (2)
threw her to the ground, (3) dragged her toward some bushes, (4) choked her, (5) covered
her mouth, (6) forced her pants and underwear off, (7) bit her nose and thumb, (8) fractured
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two of her vertebrae, and (9) had sex with her. As a result of all this, L.P. was hospitalized.
These uncontested facts sound to us very much like something akin to “rape.” Defendant
is keen to point out that Nevada requires “sexual penetration” as an element of the crime
of sexual assault. Nev. Rev. Stat. § 200.366. But even setting aside for the moment that
the undisputed PSR tells us Defendant admitted shortly after the incident “to having sex
with the victim,” the term rape today is often defined generically as “[u]nlawful sexual
activity (esp. intercourse) with a person (usu. a female) without consent and usu. by force
or threat of injury.” Rape, Black’s Law Dictionary 1513 (12th ed. 2024). Today rape is
also termed “sexual assault,” “sexual battery,” or “sexual abuse.” Id.
According to Defendant, the district court varied upwards “on an assumption drawn
from disputed allegations reflected in the PSR.” Aplt’s Op. Br. at 14. At his sentencing
hearing, Defendant told the court he was drunk, could not get an erection, and never had
sex with L.P. And because he claimed he never had sex with L.P., or more specifically,
penetrated her, Defendant asserts the record in no sense supports a finding that he raped
her. But if, contrary to the PSR, this was the version of events Defendant wished to portray
before the district court, he was too late. Rule 32(i)(3)(A) of the Federal Rules of Criminal
Procedure permits a district court to “accept any undisputed portion of the presentence
report as a finding of fact.” See United States v. Harris, 447 F.3d 1300, 1306 (10th Cir.
2006). Defendant’s failure to formally object to the PSR prior to or at sentencing relieved
the Government from having to develop a factual record upon which the district court could
assess the validity of his bare assertions. Perhaps concealing the truth was Defendant’s
sentencing strategy, in effect turning the matter into a “she said, he said.” But where the
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record supports “two permissible views of the evidence, the factfinder’s choice between
them cannot be clearly erroneous.” Craine, 995 F.3d at 1157 (internal quotation marks
omitted). Because Defendant failed to specifically object to the factual allegations in the
presentence report, the district court properly deemed those allegations admitted, thus
relieving the Government of its burden to produce additional evidence in support of them.
Vazquez-Garcia, 130 F.4th at 898. The district court’s use of the term “rape,” while
perhaps reflexive, is not so far afield on the record before us that we may label it clearly
erroneous. Craine, 995 F.3d at 1157.
III.
Defendant next argues his 60-month sentence is substantively unreasonable because
it (1) is over twice as high as the high end of his 21 to 27 month advisory guidelines range,
(2) accounts for matters, in particular the need for deterrence and likelihood of recidivism,
already accounted for in his guidelines range, and (3) creates an unwarranted sentencing
disparity between himself and other reentry offenders with a similar offense level and
criminal history category. Our review is for an abuse of discretion and focuses on whether
the length of the sentence is reasonable given the totality of the circumstances in light of
the § 3553(a) factors. United States v. Lucero, 130 F.4th 877, 886 (10th Cir. 2025). A
district court abuses its discretion when its sentence is arbitrary, capricious, whimsical, or
manifestly unreasonable. United States v. Valdez, 128 F.4th 1314, 1317 (10th Cir. 2025).
Our deferential standard of review comports with the reality that the sentencing guidelines
are now advisory and a district judge is the only judge that looks a criminal defendant in
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the eye at sentencing. As the sentencing court, the district court “has access to, and greater
familiarity with, the individual case and the individual defendant before [it] than the
[Sentencing] Commission or the appeals court.” Rita v. United States, 551 U.S. 338, 357–
58 (2007). Thus, the district court “is in a superior position to find facts and judge their
import under § 3553(a) in the individual case.” Gall, 552 U.S. at 51.
Unsurprisingly, Defendant complains much about the extent of the variance in his
case. Recall that here the district court varied upwards to a sentence of 60-months’
imprisonment, over twice the high end of the 21 to 27 months advisory guidelines range.
Yet in Gall, the Supreme Court explained that “while the extent of the difference between
a particular sentence and the recommended Guidelines range is surely relevant, courts of
appeals must review all sentences—whether inside, just outside, or significantly outside
the Guidelines range—under a deferential abuse-of-discretion standard.” Id. at 41.
Because the guidelines are no longer mandatory, “the range of choice dictated by the facts
of the case is significantly broadened.” Id. at 59 (emphasis added). To be sure, “a major
[variance] should be supported by a more significant justification than a minor one.” Id.
at 50. “In reviewing the reasonableness of a sentence outside the Guidelines range,
appellate courts may therefore . . . consider the extent of the deviation from the Guidelines.”
Id. at 47. But the Supreme Court eschewed any “appellate rule that requires ‘extraordinary’
circumstances to justify a sentence outside the Guidelines range,” or, more importantly for
present purposes, that requires “the use of a rigid mathematical formula that uses the
percentage of a departure as the standard for determining the strength of the justifications
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required for a specific sentence.”1 Id.
In considering the substantive reasonableness of the district court’s 33-month
variance from the high end of Defendant’s advisory guidelines range, our recent decision
in United States v. Valdez, 128 F.4th 1314 (10th Cir. 2025) is most instructive. In that case,
defendant pled guilty to conspiring to transport two aliens inside the United States in
exchange for $1000 in violation of 8 U.S.C. § 1324(a)(1)(A)(ii). Defendant’s criminal
history “some of which [was] recent” included a “false-reporting case, spousal-assault case,
and two DWIs.” Valdez, 128 F.4th at 1316. Defendant’s advisory guidelines range was 4
to 10 months’ imprisonment. Both the Government and defendant asked for a sentence
within the advisory guidelines range. The district court sentenced defendant to 24-months’
imprisonment, a sentence, like here, over twice the high end of the guidelines range. On
appeal, we upheld defendant’s sentence as an exercise of the district court’s sound
discretion. We explained that “the Guidelines do not necessarily [consider] . . . the trends
of a defendant’s criminal conduct, either in terms of the recency or seriousness of that
criminal conduct. Thus, a court may vary upward based on recent and serious criminal
conduct.” Id. at 1318 (internal citation and quotation marks omitted). We observed the
district court was “justifiably concerned” about several § 3553(a) factors and this
1 The Supreme Court rejected the use of such rules because they “come too close to creating an impermissible presumption of unreasonableness for sentences outside the Guidelines range.” Gall, 522 U.S. at 47. The Court further observed that the mathematical formula “suffers from infirmities of application.” Id. “On one side of the equation, deviations from the Guidelines range will always appear more extreme— in percentage terms—when the range itself is low, and a sentence of probation will always be a 100% departure regardless of whether the Guidelines range is 1 month or 100 years.” Id. at 47–48. 11 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 12
“individual defendant.” Id. The district court “believed defendant’s past sentences . . .
failed to deter his criminal conduct. . . . Defendant did not accept responsibility but made
excuses for his prior convictions—as demonstrated by his exchange with the district court
at the sentencing hearing.” Id. Indeed, “[d]efendant’s explanations for his prior criminal
history troubled the district court, including that his wife didn’t want to testify against him
in the assault case and his explanations for his DWIs.” Id. at 1316.
Given our decision in Valdez approving a variance over twice the high end of the
guidelines range based in large part on defendant’s recent and serious criminal misconduct
prior to his alien-transporting offense, we are hard pressed to conclude Defendant’s
sentence here is manifestly unreasonable. Comparing the facts of the present matter with
the facts in Valdez reveals the two cases have much in common, including evasive
defendants. One critical distinction exists between the cases however, namely that the
justifications for the district court’s substantial upward variance here are more compelling
than those justifications we held sufficient to support a similar upward variance in Valdez.
Unlike in Valdez, where defendant’s criminal history consisted of two DWIs and a false
reporting case, all non-violent offenses, and one incident of spousal assault, Defendant’s
criminal history here reveals a pattern of violent conduct within the United States. In 1999
Defendant was convicted in state court of destruction of property and disorderly conduct.
In 2001, Defendant was convicted in state court of assault arising out of an attempted
robbery. In 2002, Defendant was convicted again in state court of manslaughter after an
initial charge of murder was dropped. After his release from prison in 2005, Defendant
was deported only to return shortly thereafter. In 2007, Defendant was convicted in state
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court of battery and attempted kidnapping arising out of his encounter with L.P. Defendant
spent the next twelve years in prison before his release in 2019. Undeterred by his
numerous criminal prosecutions in the United States, Defendant attempted to reenter the
country in 2023.
Our decision in United States v. Vasquez-Garcia, 130 F.4th 891 (10th Cir. 2025),
handed down less than one month after Valdez, also informs our analysis. In that case,
defendant, like Defendant here, was charged with illegal reentry in violation of 8 U.S.C.
§ 1326. Both the Government and defendant requested a within-guideline sentence.
Defendant’s criminal history consisted of the following convictions: (1) petty theft in 2005,
(2) driving under the influence and without a license in 2006, and (3) child abuse involving
attempted sexual abuse in 2018. While undoubtedly serious, this history again was not as
violent as the present Defendant’s. At sentencing, defendant offered much the same
explanation for his past violent conduct as does Defendant here. He did not object to the
PSR but still told the court he had not committed sexual abuse, did not remember what had
happened because he was intoxicated, and never intended to molest or abuse his
stepdaughter. Based largely on defendant’s prior child-abuse conviction alone, the district
court varied upwards 18 months from an advisory guidelines range of 24 to 30 months and
imposed a 48-month sentence of imprisonment for his first reentry offense.
On appeal, we rejected defendant’s argument that because the district court gave
inordinate weight to his child-abuse conviction when deciding to impose a substantial
upward variance, his sentence was substantively unreasonable. We held the district court
“did not commit an error . . . by finding [defendant’s] criminal history supported an upward
13 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 14
variance notwithstanding that it was used to calculate his guidelines range.” Vazquez-
Garcia, 130 F.4th at 900. We reasoned that the conduct underlying defendant’s child-
abuse conviction and his evasive explanations for such conduct were “relevant to the
seriousness of [defendant’s] reentry offense because the crime of illegal reentry by an alien
who has committed a violent felony is a serious one.” Id. at 902 (internal quotation marks
omitted). We further explained the district court reasonably treated the sexual abuse
underlying the child-abuse conviction as relevant to other § 3553(a) factors in addition to
the seriousness of the reentry offense. These factors included the history and
characteristics of defendant and the need to protect the public from further crimes he might
commit. We concluded that “the district court’s focus on the conduct underlying
[defendant’s] child-abuse conviction was not ‘manifestly unreasonable’ because that
conduct was directly relevant to multiple § 3553(a) factors.” Id. at 903. Vazquez-Garcia
teaches us that the district court in our case did not abuse its discretion by giving inordinate
weight to Defendant’s sexual battery of L.P. because this offense coupled with Defendant’s
troubling explanation for it was relevant to the seriousness of his illegal-reentry offense as
well as a number of other § 3553(a) factors.
A third recent case that warrants our attention, handed down one day prior to
Vazquez-Garcia, is United States v. Lucero, 130 F.4th 877 (10th Cir. 2025). There,
defendant pled guilty to being a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. § 922(g)(1) after threatening his ex- girlfriend, her mother, and two
children with a loaded 9mm handgun. The district court varied upwards from an advisory
guidelines range of 57 to 71 months and sentenced defendant to the statutory maximum of
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10 years or 120-months imprisonment. We affirmed on appeal. Among other things,
defendant argued, just as Defendant does here, that to justify the variance the district court
improperly relied on the criminal history already accounted for in the calculation of his
guidelines range. Observing as we did in both Valdez and Vazquez-Garcia, that “prior
criminal history can be considered relevant for multiple § 3553(a) factors,” we rejected
defendant’s argument. Lucero, 130 F.4th at 887. We explained “[t]hat argument is
unavailing since ‘[u]nder current precedent, district courts have broad discretion to
consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), even when
those facts are already accounted for in the advisory guidelines range.’” Lucero, 130 F.4th
at 884 (quoting United States v. Barnes, 890 F.3d 910, 921 (10th Cir. 2018)).
All this leaves us with Defendant’s final argument, namely that his variance creates
an unwarranted sentence disparity. In support of his argument, Defendant points to
Judiciary Sentencing Information (JSIN) data for defendants sentenced under the same
guideline at the same offense level and criminal history category within the last five years.
Indeed, § 3553(a)(6) instructs district courts to consider “the need to avoid unwarranted
sentencing disparities among defendants with similar records who have been found guilty
of similar conduct.” (emphasis added). But we explained in Valdez, 188 F.4th at 1319,
that “bare national statistics do not shed light on the extent to which the sentences that the
statistics pertain to involve defendants that are similarly situated to Defendant.” (internal
brackets omitted) (quoting United States v. Garcia, 946 F.3d 1191, 1215 (10th Cir. 2020)).
Subsequently, in Lucero, 130 F.4th at 887, we reiterated: “[R]eports on national averages
are not dispositive because they do not provide information into a defendant’s individual
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history and characteristics.” Contra id. at 890–91 (McHugh, J., concurring). Here
Defendant fails to show how he is similarly situated with those of the national average.
Accordingly, like Defendant’s other arguments, Tenth Circuit precedent forecloses
Defendant’s disparity argument.
Considering our case precedents, applying the deferential standard of review
applicable to sentencing challenges, and crediting the district court’s consideration of the
multiple § 3553(a) sentencing factors, we conclude the court did not abuse its discretion in
imposing a 60-month sentence of imprisonment on Defendant for his third unlawful entry
following a series of convictions for violent crimes in the United States. Instead, the length
of Defendant’s sentence is reasonable in view of the totality of the circumstances as those
circumstances bear upon the § 3553(a) factors. The district court reasonably treated the
sexual assault underlying his battery and kidnapping offenses as well as his entire history
of violent misconduct as bearing upon the nature and seriousness of his reentry offense.
See 18 U.S.C. § 3553(a)(1), (2)(A); Vasquez-Garcia, 130 F.4th at 902–03. Also relevant
was Defendant’s denial of any serious wrongdoing after he had spent 12 years in prison as
a consequence of his encounter with L.P. See id. Defendant’s explanations for the sexual
assault—he was intoxicated, he never had sex with L.P., and L.P. had set him up because
he refused to pay her for sex—fell on deaf ears. This is understandable given Defendant
presented no evidence of his rehabilitation other than his unsubstantiated claims that he no
longer drinks alcohol and has found religion. The pattern of violent conduct within the
United States in which Defendant engaged prior to his most recent apprehension at the
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border and his evasiveness at sentencing also bore upon Defendant’s history and
characteristics. 18 U.S.C. § 3553(a)(1). Finally, the need for Defendant’s sentence to
promote respect for the law (for which he has shown little, if any respect to this point),
provide just punishment for the offense, afford adequate deterrence, and protect the public
from further violent crimes of Defendant justified the upward variance in this case.2
For all the foregoing reasons, Defendant’s 60-month sentence of imprisonment is
AFFIRMED.
2 Notably, Defendant does not ask us to remand so that the district judge may further explain her decision to vary upwards from Defendant’s advisory guidelines range. Rather Defendant says his 60-month sentence is unreasonable as a matter of law. He requests an outright reversal and a new sentencing hearing before another district judge. 17 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 18
No. 23-2177, United States v. Cortez
McHUGH, Circuit Judge, concurring:
I join in the majority decision, but I write separately to address my concerns about
our precedent on the use of national sentencing statistics to avoid unwarranted sentencing
disparities.
Section 3553(a)(6) requires consideration of “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found
guilty of similar conduct.” In analyzing this factor, the district court found “[t]here’s
been no showing that there’s a sentencing disparity in this case.” ROA Vol. III at 37.
But the PSR cited national statistics showing that defendants with the same offense
level and criminal history category as Mr. Cortez received average and median
sentences of 15 months. Those statistics came from the Sentencing Commission’s
Judiciary Sentencing Information (“JSIN”) database and were specific to defendants
sentenced under U.S.S.G. § 2L1.2, which is a Guideline used solely for illegal
reentry offenses.
We have previously stated that consideration of § 3553(a)(6) may entail
reviewing “comparative data.” United States v. Crosby, 119 F.4th 1239, 1251 (10th
Cir. 2024) (quotation marks omitted). We have also emphasized that this factor is
primarily concerned with avoiding unwarranted “nationwide disparities,” indicating
that national statistics such as the JSIN data may be relevant. United States v. Garcia,
946 F.3d 1191, 1215 (10th Cir. 2020). In fact, the Sentencing Commission created
the JSIN database in 2021 “at the request of judges” to “provide[] quick online access Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 19
to sentencing data for similarly situated individuals.” United States Sentencing
Commission, Annual Report 2023, https://www.ussc.gov/about/annual-report-2023
(emphasis added) (last visited May 22, 2025); see also United States v. Brewster, 116
F.4th 1051, 1062 (9th Cir. 2024) (“The JSIN data came from a reliable source
designed specifically for judges to use during sentencing to fulfill their obligations
under § 3553(a)(6).”).
But in Garcia, we held that “bare national statistics do not shed light on the
extent to which the sentences that the statistics pertain to involve defendants that are
similarly situated.” Garcia, 946 F.3d at 1215. The defendant in Garcia was convicted
as a felon in possession of a firearm and, at sentencing, produced nationwide
statistics covering all “firearms defendants” to argue that an upward variance would
produce a disparate sentence. Id. at 1196, 1214. We concluded that those statistics
did not speak to whether there was a disparity under § 3553(a)(6) because they did
not survey defendants with “a similar longstanding pattern of flagrant and serious
lawbreaking, which not infrequently involved unlawful possession of inherently
dangerous firearms.” Id. at 1215. Importantly, neither Garcia nor § 3553(a)(6)
require defendants to produce statistics about comparator defendants with identical
records.
In my view, there is apparent tension in our precedent that can be resolved by
examining the important differences between the relevant data. Unlike the broad
statistics for all “firearms defendants” in Garcia, 946 F.3d at 1214, the JSIN statistics
here survey defendants guilty of the same conduct as Mr. Cortez and who have
2 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 20
similar records. See ROA Vol. II at 15 (noting these nationwide statistics covered
“1655 defendants whose primary guideline was § 2L1.2, with a Final Offense Level
of 15 and a Criminal History Category of II”). The statistics are limited to defendants
sentenced with reference to U.S.S.G. § 2L1.2, a Guideline used solely for defendants
found guilty of “unlawfully entering or remaining in the United States.” U.S.S.G.
§ 2L1.2. And they include only defendants in the same criminal history category as
Mr. Cortez, Category II. This category is calculated by assigning numerical values to
a defendant’s prior convictions and sentences which, once totaled, cause the
defendant to be placed in a specific category. See U.S.S.G. § 4A1.1. Thus, defendants
in the same criminal history category should have similar criminal backgrounds
because they committed a similar number of offenses and spent similar amounts of
time in custody.
As the majority correctly notes, see Maj. Op. at 15, Garcia states that “bare
national statistics do not shed light on the extent to which the sentences that the
statistics pertain to involve defendants that are similarly situated to [the defendant],”
Garcia, 128 F.4th at 1319. I would place this statement in the context of Garcia
itself, in which the defendant was convicted of a felon-in-possession charge and then
relied on national sentencing statistics that lumped together all “firearms defendants.”
Id. at 1214. The statistics here, by contrast, solely involve defendants convicted of
illegal reentry and sentenced with reference to U.S.S.G. § 2L1.2, with identical
offense levels and criminal history categories. In my view, considering such statistics
is consistent with § 3553(a)(6). If “bare national statistics” are irrelevant, yet at the
3 Appellate Case: 23-2177 Document: 55-1 Date Filed: 06/10/2025 Page: 21
same time § 3553(a)(6) is concerned with “nationwide disparities,” Garcia, 946 F.3d
at 1215, it is unclear to me what further information a defendant could provide that
would be relevant to this factor. See 18 U.S.C. § 3553(a)(6) (requiring district courts
to consider “the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct”).
Thus, I would not construe our precedent as requiring that all national statistics
should be treated alike.
Here, the JSIN statistics encompass defendants with the same criminal history
score—meaning defendants with similar, but not identical, records—who were found
guilty of the same conduct, unauthorized presence in the United States. The statistics
show that the district court’s upward variance to 60 months was four times greater
than the average national sentence given to similarly situated offenders of 15 months.
See App. Vol. II at 15. In my view, not all sentencing statistics are alike, and some may
provide an important data point when selecting a sentence.