United States v. Gabriel Rojas-Lopez

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 3, 2026
• Docket: 25-11771
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION

In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 25-11771 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus

GABRIEL ROJAS-LOPEZ, a.k.a Francisco Reyes, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Middle District of Georgia D.C. Docket No. 3:24-cr-00031-TES-CHW-1 ____________________

Before JORDAN, LAGOA, and KIDD, Circuit Judges. PER CURIAM: Gabriel Rojas-Lopez appeals his sentence of 24 months’ im- prisonment for being unlawfully present in the United States after USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 2 of 10

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having previously been removed, 18 U.S.C. § 1326(a). Rojas-Lopez argues that the district court abused its discretion in varying up- ward to impose a substantively unreasonable sentence by failing to adequately consider his mitigating factors under 18 U.S.C. § 3553(a) and creating an unwarranted sentencing disparity be- tween similarly situated defendants. I. Rojas-Lopez is a citizen of Mexico who has unlawfully en- tered or attempted to enter the United States at least four times. He was first encountered by immigration officials in 2018 in Madi- son County, Georgia after being arrested for family violence charges. He was found to have entered the United States without inspection or admission sometime in 1997 when he was 14-years old. He was processed for removal and deported in February 2019. He returned again unlawfully and was encountered by immigra- tion officials walking in the desert near San Miguel, Arizona and was deported for a second time in April 2019. Five days after his deportation, Rojas-Lopez was encountered for a third time at or near Lukeville, Arizona and returned to Mexico. Three days later, agents found him again at or near Cowlic, Arizona. After this entry he was arrested and subsequently prosecuted in the U.S. District Court for the District of Arizona. Following his guilty plea and sentencing, he was deported in August 2019. And in May 2023, he was arrested in Franklin County, Georgia, for Driving Under the Influence (DUI) and other traffic offenses. After the most recent illegal reentry and arrest, he plead guilty to illegally reentering the USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 3 of 10

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United States as a previously deported alien, in violation of 18 U.S.C. § 1326(a). A probation officer prepared a presentence investigation re- port (PSI) documenting Rojas-Lopez’s background. The report de- scribed his four encounters, before the instant offense, where Ro- jas-Lopez was removed from the United States and his criminal his- tory, included convictions for traffic violations, DUIs, and child en- dangerment. Neither party filed objections to the PSI. At sentencing, the district court found a total offense level of six, a criminal history category of II, and a guideline range of one to seven months’ imprisonment. Despite the parties’ joint recom- mendation for a sentence within the guideline range and Rojas- Lopez’s request for six months time served, the district court varied upward and imposed a sentence of 24-months, followed by no su- pervised release. The district court explained that it considered the statutory sentencing factors and determined that because of his re- cidivism, including four previous deportations, eight DUI arrests, and six DUI convictions, the advisory sentencing range was insuf- ficient to reflect the seriousness of the offense and Roja-Lopez’s his- tory and characteristics. Rojas-Lopez now appeals, challenging the substantive rea- sonableness of his sentence. II. USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 4 of 10

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We review the substantive reasonableness of a sentence un- der a deferential abuse-of-discretion standard considering the total- ity of the circumstances. Gall v. United States, 552 U.S. 38, 51 (2007). In reviewing the reasonableness of a sentence, we will not substi- tute our own judgment for that of the district court and will “affirm a sentence so long as the court’s decision was in the ballpark of per- missible outcomes.” United States v. Butler, 39 F.4th 1349, 1355 (11th Cir. 2022) (quotation marks omitted). The party challenging the sentence bears the burden of proving it is unreasonable. United States v. Boone, 97 F.4th 1331, 1338-39 (11th Cir. 2024). III. Under § 3553(a), the district court must impose a sentence that is sufficient, but not greater than necessary, to reflect the seri- ousness of the offense, to promote respect for the law, to provide just punishment for the offense, to afford adequate deterrence, and to protect the public from further crimes of the defendant. 18 U.S.C. § 3553(a). In addition, the court must consider, among other factors, the nature and circumstances of the offense, the his- tory and characteristics of the defendant, and the need to avoid un- warranted sentence disparities among similarly situated defend- ants. Id. First, Rojas-Lopez references publicly available data from the Sentencing Commission indicating that the average sentence for offenders punished pursuant to U.S.S.G. § 2L1.2 with a criminal history category of II was nine months nationally and eight months in this Circuit. He also notes that the average sentences for § 2L1.2 USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 5 of 10

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offenders with different criminal history categories, including that only those defendants with a criminal history category of V have received the statutory maximum sentence. Less than two percent of these similarly situated individuals received the statutory maxi- mum sentence. Second, Rojas-Lopez argues that the district court focused too much on his repeated attempts to reenter the country over a short duration and his prior DUI convictions, and failed to account for his mitigating circumstances such as being brought to the United States as a child, his father becoming a citizen without applying for citizenship for him, the United States being his only home, raising a family here, and having no life or support network in Mexico. He argues that the district court’s reliance on his crim- inal record did not justify an extreme variance and created an un- warranted sentencing disparity from similarly situated offenders. Although the district court is required to consider all rele- vant § 3553(a) factors, “the weight given to each factor is commit- ted to the sound discretion of the district court,” and the court may attach great weight to one factor over the others. Butler, 39 F.4th at 1355. We have held that “[p]lacing substantial weight on a de- fendant’s criminal record is entirely consistent with § 3553(a) be- cause five of the factors it requires a court to consider are related to criminal history.” United States v. Rosales-Bruno, 789 F.3d 1249, 1263 (11th Cir. 2015). The district court does not have to explicitly state on the record that it has considered all of the factors or ex- pressly discuss each of them. United States v. Ortiz-Delgado, 451 F.3d 752, 758 (11th Cir. 2006). Moreover, the district court’s failure to USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 6 of 10

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discuss mitigating evidence does not indicate that the court “erro- neously ‘ignored’ or failed to consider this evidence.” United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). Further, affording mitigating factors less weight than a defendant contends they de- serve does not make a sentence unreasonable. United States v. Le- bowitz, 676 F.3d 1000, 1016-17 (11th Cir. 2022). One of the purposes of the Guidelines is to provide certainty and fairness in sentencing, and “avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” United States v. Docampo, 573 F.3d 1091, 1102 (11th Cir. 2009) (quotation marks omitted). Thus, “a well-founded claim of disparity . . . assumes that apples are being compared to apples.” Id. at 1101 (quotation marks omit- ted). When considering a claim of disparity, we consider whether the defendant is similarly situated to defendants he presents as comparators who received a different sentence. United States v. Johnson, 980 F.3d 1364, 1386 (11th Cir. 2020). We have indicated that we are not convinced that a sentence imposed in this Circuit is subject to a “national grade curve.” United States v. Hill, 643 F.3d 807, 885 (11th Cir. 2011) (noting that the defendant’s argument that there was an unwarranted disparity between his sentence and oth- ers who have been convicted of fraud crimes throughout the coun- try “would be difficult to gauge”). The Supreme Court has stated that the “avoidance of unwarranted disparities was clearly consid- ered by the Sentencing Commission when setting the Guidelines ranges.” Gall, 552 U.S. at 54. When a district court correctly calcu- USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 7 of 10

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lates and carefully reviews the Guideline range, the court has “nec- essarily [given] significant weight and consideration to the need to avoid unwarranted disparities.” Id. The sentencing court may impose an upward variance if it concludes that the guideline range is insufficient to account for the relevant § 3553(a) factors. See United States v. Johnson, 803 F.3d 610, 619 (11th Cir. 2015) (affirming upward variance where the district court “[found] that the defendant’s criminal history category un- derstated the seriousness of his criminal history.”). No presump- tion of reasonableness or unreasonableness applies to a sentence that lies outside the advisory guideline range. Butler, 39 F.4th at 1355. “When imposing a variance, a district judge must give seri- ous consideration to the extent of any departure from the [g]uide- lines and must explain [its] conclusion that an unusually lenient or an unusually harsh sentence is appropriate in a particular case with sufficient justifications.” Id. (quotation marks omitted). In review- ing the reasonableness of such a sentence, we “may consider the extent of the deviation, but must give due deference to the district court’s decision that the 18 U.S.C. § 3553(a) factors, on a whole, justify the extent of the variance.” Gall, 552 U.S. at 51. We will “vacate the sentence if, but only if, we are left with the definite and firm conviction that the district court committed a clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies outside the range of reasonable sentences dictated by the facts of the case.” United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation marks omitted). USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 8 of 10

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Here, we conclude that the district court did not abuse its discretion in varying upward from the applicable guideline range and imposing the statutory maximum sentence of two years’ im- prisonment. The district court reasonably found that the guideline range was insufficient to account for the seriousness of Rojas- Lopez’s offense and his personal history and characteristics. See Johnson, 803 F.3d at 619. The district court’s upward variance was consistent with the fact that Rojas-Lopez’s criminal history cate- gory did not reflect all four previous deportations, eight DUI ar- rests, and six DUI convictions where he at most received 30-days in jail. Butler, 39 F.4th at 1355. And the district court explained how this criminal history factored into the § 3553(a) factors, including the district court’s concern for Rojas-Lopez’s “egregious and habit- ual violations of DUI laws,” to promote respect for the law, to pro- vide just punishment, to afford adequate deterrence, and the need to protect the public. D.E. 41 at 6-7); 18 U.S.C. § 3553(a); Butler, 39 F.4th at 1355. Further, to the extent Rojas-Lopez argues that the district court abused its discretion by failing to consider his mitigating cir- cumstances, such as his family bringing him to the United States as a minor and his American-born children, the record indicates oth- erwise. The district court explicitly acknowledged its appreciation for the letters written on Rojas-Lopez’s behalf, which explained the circumstances of his family residing in the United States. The dis- trict court also noted that, while it understood that Rojas-Lopez was brought into the United States by his parents at 14-years-old, it did not understand Rojas-Lopez getting convicted of illegal entry USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 9 of 10

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into the United States then breaking back into the country at 35- years-old. The district court did not abuse its discretion in affording Rojas-Lopez’s mitigating factors less weight than he contends they deserve. Lebowitz, 676 F.3d at 833. In fact, the district court’s con- sideration of the record, the character letters submitted by Rojas- Lopez’s family, the statements of the parties, the PSI, the advisory guidelines, and the § 3553(a) factors, indicates a reasoned sentenc- ing decision. See Butler, 39 F.4th at 1355. Additionally, Rojas-Lopez failed to show that his sentence was disparate to those imposed on similarly situated offenders. Even stipulating to some general similarities between Rojas- Lopez’s case and other cases identified by the Sentencing Commis- sion data, Rojas-Lopez nevertheless fails to demonstrate a claim of disparity. Rojas-Lopez ignores the district court’s explanation as to the many ways that he is not similarly situated to the average illegal reentry defendant, including his four previous deportations, eight DUI arrests, and six DUI convictions. Rojas-Lopez likewise ignores his long, documented history of endangerment of the public—evi- denced by his multiple instances of driving under the influence, driving with his children in the vehicle while intoxicated, and do- mestic abuse charges. His eight DUI arrests and six DUI convic- tions underscore his continuing disrespect for the law. 18 U.S.C. § 3553(a). Rojas-Lopez has been deported four times and convicted for illegal reentry, and he offered no compelling reason to believe that he will not attempt to reenter the country again. By correctly calculating and carefully reviewing the guideline range, the district USCA11 Case: 25-11771 Document: 26-1 Date Filed: 02/03/2026 Page: 10 of 10

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court necessarily gave significant weight and consideration to the need to avoid unwarranted disparities. See Gall, 552 U.S. at 54. IV. For the reasons stated, we conclude that the district court’s 24-month sentence is substantively reasonable and affirm Ro- jas-Lopez’s sentence. AFFIRMED.