Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS March 12, 2025 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 24-2074
ISMAEL VAZQUEZ-GARCIA,
Defendant - Appellant. _________________________________
Appeal from the United States District Court for the District of New Mexico (D.C. No. 2:23-CR-01802-MIS-1) _________________________________
J.K. Theodosia Johnson, Office of the Federal Public Defender, Albuquerque, New Mexico, for Defendant – Appellant.
James R.W. Braun, Assistant United States Attorney, Office of the United States Attorney, Albuquerque, New Mexico (Alexander M.M. Uballez, United States Attorney, with him on the brief), for Plaintiff – Appellee. _________________________________
Before TYMKOVICH, BALDOCK, and McHUGH, Circuit Judges. _________________________________
McHUGH, Circuit Judge. _________________________________
Appellant Ismael Vazquez-Garcia appeals from his 48-month sentence for
illegal reentry. At the sentencing hearing, the district court asked Mr. Vazquez-
Garcia numerous questions about a prior child-abuse conviction, relying on factual Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 2
allegations in the presentence report (“PSR”) about the underlying conduct for that
conviction. After the district court finished questioning Mr. Vazquez-Garcia, it
sentenced him to 48 months in custody, an 18-month upward variance from the top
recommended sentencing range of 24 to 30 months. On appeal, Mr. Vazquez-Garcia
argues his sentence is both procedurally and substantively unreasonable.
We hold Mr. Vazquez-Garcia has not shown his sentence is procedurally
unreasonable because (1) the district court did not err by adopting the unobjected-to
allegations in the PSR about the conduct underlying the child-abuse offense, and
(2) the district court did not err by varying upwards based on his criminal history.
Mr. Vazquez-Garcia also has not shown that the district court rendered a
substantively unreasonable sentence by heavily weighing the child-abuse conviction.
Accordingly, we affirm.
I. BACKGROUND
A. Procedural History and Presentence Report
Mr. Vazquez-Garcia is a 42-year-old Mexican citizen. He was first removed
from the United States on December 21, 2022, after being released from incarceration
for a 2018 child-abuse offense. In November 2023, Border Patrol agents near
Lordsburg, New Mexico located Mr. Vazquez-Garcia walking with several other
individuals. Upon being questioned, Mr. Vazquez-Garcia admitted that he was a
citizen of Mexico and that he reentered the United States without authorization.
Consequently, Mr. Vazquez-Garcia was detained and charged in the U.S. District
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Court for the District of New Mexico with illegal reentry as a felon under 8 U.S.C.
§ 1326. He pleaded guilty to the offense.
In preparation for Mr. Vazquez-Garcia’s sentencing hearing, a probation
officer prepared a PSR that recommended a sentencing range of 24 to 30 months, in
accordance with the applicable U.S. Sentencing Commission Guideline, § 2L1.2.
Under the Guidelines, Mr. Vazquez-Garcia’s offense level was 15: the base offense
level for the illegal-reentry offense was 8; a ten-level enhancement was added
because of his prior child-abuse conviction; and three levels were subtracted for his
acceptance of responsibility and timely decision to plead guilty. Mr. Vazquez-
Garcia’s criminal history score was 5, placing him in criminal history category III,
based on his past convictions in Florida for (1) petty theft in 2005; (2) driving under
the influence and without a license in 2006; and (3) child abuse in 2018.
The PSR provided detailed factual allegations about the conduct underlying
the child-abuse offense. It noted that Mr. Vazquez-Garcia was originally charged
with molestation, lewd and lascivious conduct, attempted lewd and lascivious battery,
and child abuse, but that all counts other than the child-abuse charge were dismissed.
The PSR recounted the following allegations about what occurred: (1) in March
2018, police officers responded to a residence to investigate a report of attempted
sexual battery; (2) the officers talked to Mr. Vazquez-Garcia’s thirteen-year-old
stepdaughter, the victim, who was visibly upset; (3) the victim stated Mr. Vazquez-
Garcia was making sexual advances towards her and groped her left breast over her
clothing; (4) the victim stated she tried to get away from Mr. Vazquez-Garcia, but he
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followed her around the house and outside; (5) the victim eventually locked
Mr. Vazquez-Garcia outside the house; (6) in response, Mr. Vazquez-Garcia tried to
break the sliding glass door and told the victim she would enjoy kissing him; and
(7) Mr. Vazquez-Garcia was outside the house holding a beer when the officers
arrived. Mr. Vazquez-Garcia was ultimately sentenced to five years in custody for the
child-abuse conviction.
The PSR further stated that Mr. Vazquez-Garcia had not accrued a disciplinary
record while he was incarcerated, and it noted that he had completed several courses
of study during his imprisonment. And the PSR included Mr. Vazquez-Garcia’s story
regarding why he returned to the United States: after he was removed in December
2022, his brother was murdered by a cartel in April 2023, and he was personally
attacked by cartel members on two separate occasions. During a third altercation,
cartel members threatened to kill Mr. Vazquez-Garcia. Because Mr. Vazquez-Garcia
feared for his life and needed to earn more money to buy medication for his father, he
returned to the United States. Last, the PSR recommended against departing or
varying from the sentencing range.
Mr. Vazquez-Garcia filed a sentencing memorandum prior to the sentencing
hearing, in which he attested he had reviewed the PSR with counsel and had no
“objections to the calculations nor additional corrections.” ROA Vol. I at 9.
Mr. Vazquez-Garcia also expressed remorse for reentering the country without
authorization and asked for a sentence below the Guidelines range, noting that the
average sentence for defendants with the same offense level and criminal history
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category is 18 to 19 months. In its response, the Government argued a Guidelines-
range sentence was appropriate, even considering the unobjected-to facts in the PSR
about Mr. Vazquez-Garcia’s child-abuse conviction.
B. Sentencing Hearing
The district court conducted a sentencing hearing on April 18, 2024. The court
began by asking Mr. Vazquez-Garcia’s counsel if she had reviewed the PSR with her
client, to which counsel replied, “Yes I have. And there’s no corrections or
objections.” ROA Vol. III at 5. The court then informed counsel that it had “some
concerns about [Mr. Vazquez-Garcia’s] prior conviction in 2018,” and that it “might
consider an upward variance.” Id.
Next, the Government argued that because the facts in the PSR about the child-
abuse conviction had “not been contested,” it believed a 28-month sentence would
sufficiently account for the seriousness of Mr. Vazquez-Garcia’s criminal history. Id.
at 5–6. The Government noted that although “sometimes the Guidelines do not take
into account” a defendant’s “egregious priors,” it believed a Guidelines-range
sentence was appropriate because Mr. Vazquez-Garcia’s offense level was enhanced
by ten points because of the child-abuse conviction. Id. at 6.
Mr. Vazquez-Garcia’s counsel next argued that the court should “not upward
vary from the Guidelines” because Mr. Vazquez-Garcia was already “getting a ten-
level enhancement for” the child-abuse conviction and he had served “a substantial
sentence for that” conviction. Id. Counsel pointed out this was Mr. Vazquez-Garcia’s
first reentry offense and explained that he had not understood prior to reentering the
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country how serious the offense of illegal reentry as a felon was. Counsel further
noted that Mr. Vazquez-Garcia had been sober since his arrest in 2018 and that he
had pursued rehabilitation in prison, completing multiple courses of study. And
counsel reiterated why Mr. Vazquez-Garcia returned to the United States: cartel
members killed his brother in April 2023, he was personally attacked and threatened
with death by cartel members, and he wanted to work to help his father.
Mr. Vazquez-Garcia also spoke to the court. He stated he previously “had
problems with alcoholic beverages,” and he was intoxicated when he said
“inappropriate words” to his stepdaughter in the incident underlying his child-abuse
conviction. Id. at 11. He claimed he had stopped drinking to the point of intoxication.
He further explained he returned to the United States only because he wanted “to
work for [his] family.” Id. at 12. He told the court that his family was “suffering” and
his “father [was] not doing very well,” and thus he asked for a time-served sentence.
Id. at 13. After Mr. Vazquez-Garcia gave his statement, the district court asked him
how his brother was killed and where in the United States he had intended to find
work. Mr. Vazquez-Garcia answered both questions.
The court then told Mr. Vazquez-Garcia, “So my concern is when you
molested your 13-year-old stepdaughter. Do you want to address those actions?” Id.
at 14. Mr. Vazquez-Garcia responded that he had not committed “sexual abuse,” id.,
that he did not remember what happened during the incident, id. at 15, and that it
“was not [his] intention” to molest or abuse his stepdaughter, id. at 16. In an ensuing,
lengthy conversation, the court repeatedly pressed Mr. Vazquez-Garcia to explain his
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actions. As the court continued to question Mr. Vazquez-Garcia, his counsel
interjected and argued that “from the facts and based on [counsel’s] understanding,
there was alcohol” involved and that is why Mr. Vazquez-Garcia “doesn’t recall []
the [] allegations” in the PSR. Id. at 16–17. The court acknowledged that
Mr. Vazquez-Garcia’s memory might be impaired, but stated it was “not asking him
to recall specific facts,” it rather wanted him to provide “an explanation for molesting
this child.” Id. at 18. The court then asked Mr. Vazquez-Garcia if there was an
“explanation for that you’d like to provide,” and he replied, “No, I have none.” Id.
at 18.
At this point, the district court pronounced a sentence of 48 months and
adopted the PSR’s factual allegations. The court acknowledged that Mr. Vazquez-
Garcia had requested a downward variance and that the Government had requested a
28-month sentence. Id. at 19. It noted Mr. Vazquez-Garcia’s statements about “his
memory lapse, the threats that he received in Mexico, the murder of his brother for
refusing to work for the cartels, and [that] he was threatened by the cartels.” Id. The
court also recognized that Mr. Vazquez-Garcia received a five-year sentence “for his
child abuse conviction” and that this was his first reentry offense. Id. And the court
noted Mr. Vazquez-Garcia had indicated he had stopped drinking and that he returned
to the United States only “to provide a better life for his family.” Id. at 20.
But the district court found that the sentencing factors under 18 U.S.C.
§ 3553(a) justified an upward variance. The court stated that “[t]he nature and
circumstances of this offense are [Mr. Vazquez-Garcia] reentering the United States
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less than a year after he completed his sentence for child abuse in Florida, for which
he received five years’ custody.” Id. at 20. And the court found Mr. Vazquez-
Garcia’s relevant “history and characteristics” included “his 2005 conviction for
theft; his 2006 conviction for driving under the influence of alcohol; [and] his 2018
conviction for child abuse . . . involving the sexual assault of a child.” Id.
The court further ruled that an upward variance was justified by the statutory
goals of punishment: retribution, deterrence, public safety, and rehabilitation. The
court noted the “kinds of the sentences available, including potentially time-served”
and “the Guideline[s] range in this case of 24 to 30 months.” Id. at 21–22. The court
found an above-Guidelines sentence was reasonable under “the specific facts in this
case.” Id. at 22. Last, the court noted “the need to avoid unwarranted sentencing
disparities among defendants with similar records who have been found guilty of
similar conduct.” Id. The court stated it did not believe any disparity would result
from the 48-month sentence but ruled, in the alternative, that any disparity was
“warranted by the facts in this case.” Id.
Mr. Vazquez-Garcia timely appealed his sentence.
II. JURISDICTION
The district court had jurisdiction over Mr. Vazquez-Garcia’s case pursuant to
18 U.S.C. § 3231. This court has jurisdiction over the appeal under 28 U.S.C. § 1291.
III. DISCUSSION
Mr. Vazquez-Garcia has not established that his sentence was procedurally or
substantively unreasonable. “Reasonableness review is a two-step process comprising
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a procedural and a substantive component.” United States v. Jackson, 82 F.4th 943,
949 (10th Cir. 2023) (quotation marks omitted). In deciding whether a sentence was
procedurally unreasonable, we consider “whether the district court committed any
error in calculating or explaining the sentence.” Id. (quotation marks omitted). If a
sentence was procedurally reasonable, we then turn to substantive reasonableness,
examining “whether the length of the sentence is reasonable given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).” Id.
(quotation marks omitted). Ordinarily, we review the reasonableness of a sentence for
abuse of discretion. Id. But when an objection to the procedural reasonableness of a
sentence is “not contemporaneously raised,” that objection is “subject to plain error
review.” United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013).
Mr. Vazquez-Garcia argues his sentence is procedurally unreasonable because
(1) the district court “rel[ied] on mere allegations underlying a conviction” to fashion
his sentence, violating his right to due process, 1 Appellant’s Br. at 8, and (2) the
district court erred by varying upwards based on his criminal history. Mr. Vazquez-
Garcia contends his sentence is substantively unreasonable because the district court
1 Mr. Vazquez-Garcia does not style his constitutional argument as a procedural reasonableness challenge. Even so, an argument that a defendant’s “due process rights were violated because of unreliable hearsay evidence” is at root “an objection that [the defendant’s] sentence was procedurally unreasonable” because it was “based on erroneous facts. United States v. Ruby, 706 F.3d 1221, 1225 (10th Cir. 2013); see also United States v. Worku, 800 F.3d 1195, 1202 n.5 (10th Cir. 2015) (construing a due process challenge as a challenge to “the procedural reasonableness of a sentence”). 9 Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 10
“gave inordinate weight” to his child-abuse conviction in deciding to impose a major
upward variance. Appellant’s Br. at 20. We address each argument in turn.
A. Procedural Reasonableness
Mr. Vazquez-Garcia has not shown his sentence is procedurally unreasonable.
Mr. Vazquez-Garcia argues the district court erred by adopting and relying on the
PSR’s allegations about his child-abuse conviction. Specifically, Mr. Vazquez-Garcia
asserts that the district court violated his right to due process by adopting those
allegations because they lacked minimal indicia of reliability. Mr. Vazquez-Garcia
also argues the district court wrongly considered his criminal history for purposes of
varying upwards because the Guidelines range already accounts for that history.
Mr. Vazquez-Garcia concedes that plain error review applies to his procedural
reasonableness argument. Plain error review requires showing “that the district court
(1) committed error, (2) that the error was plain, and (3) that the plain error affected
his substantial rights.” United States v. Magallanez, 408 F.3d 672, 678 (10th
Cir. 2005). “If all these conditions are met, a court reviewing the error may exercise
discretion to correct it if the error seriously affects the fairness, integrity, or public
reputation of judicial proceeding.” Id. Mr. Vazquez-Garcia fails at the first step with
both procedural reasonableness arguments.
Beginning with the due process argument, Mr. Vazquez-Garcia has not shown
that the district court erred by adopting the PSR’s unobjected-to facts about his child-
abuse conviction. It is well-established that “a defendant has a due process right to
have his or her sentence based on accurate information.” United States v. Strayer,
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846 F.2d 1262, 1267 (10th Cir. 1988) (quotation marks omitted). But due process is
provided by Federal Rule of Criminal Procedure 32, “which specifically pertains to
allegations of inaccurate information in the reports.” Id. This rule provides that when
a defendant objects to any factual allegations in a PSR, the sentencing court must
“rule on the dispute or determine that a ruling is unnecessary either because the
matter will not affect sentencing, or because the court will not consider the matter in
sentencing.” Fed. R. Crim. P. 32(i)(3)(B). Absent an objection, however, the rule
authorizes a district court to “accept any undisputed portion of the [PSR] as a finding
of fact.” Fed. R. Crim. P 32(i)(3)(A).
Rule 32(i) thus imposes “an affirmative duty [on defendants] to make a
showing that the information in the [PSR] was unreliable and articulate the reasons
why the facts contained therein were untrue or inaccurate.” United States v.
McDonald, 43 F.4th 1090, 1096 (10th Cir. 2022) (second alteration in original)
(quotation marks omitted). Put simply, “the defendant must assert that the facts
alleged in the PSR are false.” Id. at 1096 n.3. If 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. See, e.g., United States v. Smith, 815
F.3d 671, 679 (10th Cir. 2016) (holding the district “court was free to rely upon the
PSR’s description of [a] state rape charge” absent any objections); United States v.
Hooks, 551 F.3d 1205, 1217 (10th Cir. 2009) (“If a defendant fails to specifically
object to a fact in the PSR, the fact is deemed admitted by the defendant.”); United
States v. Cereceres-Zavala, 499 F.3d 1211, 1214 (10th Cir. 2007) (“[T]o invoke the
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district court’s Rule 32 fact-finding obligation, the defendant is required to make
specific allegations of factual inaccuracy.” (quotation omitted)).
Mr. Vazquez-Garcia does not cite or discuss Rule 32(i) in his briefs. At oral
argument, his counsel asserted the rule is “fundamentally unfair,” insofar as it allows
a district court to treat allegations in a PSR as findings of fact without deciding that
they are supported by minimal indicia of reliability. Oral Argument at 14:06, United
States v. Vazquez-Garcia, No. 24-2074 (Jan. 22, 2025). But counsel cites no authority
suggesting that Rule 32(i)’s procedure is unconstitutional. 2 To the contrary, our
precedent shows that due process is satisfied if a defendant receives “adequate notice
of and an opportunity to rebut or explain information that is used against him.”
United States v. Beaulieu, 893 F.2d 1177, 1181 (10th Cir. 1990). Moreover,
Rule 32(i)’s requirement of an objection is imminently sensible—a defendant is best
situated to know whether particular allegations about his or her background are
2 In fact, every case Mr. Vazquez-Garcia relies on indicates that a defendant must object to inaccurate allegations in a PSR. See United States v. Padilla, 793 F. App’x 749, 756 n.4 (10th Cir. 2019) (involving a defendant who argued specific facts in the PSR were “untrue or inaccurate”), disapproved by United States v. McDonald, 43 F.4th 1090 (10th Cir. 2022); United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995) (reviewing the district court’s reliance on allegations in the PSR “over the objections of [the defendant]”); United States v. Beaulieu, 893 F.2d 1177, 1180 (10th Cir. 1990) (“When there is reason to question the reliability of the information made available to the judge, the Guidelines endorse the preexisting practice of allowing the district court to conduct an evidentiary hearing.” (emphasis added)). Mr. Vazquez- Garcia also relies on caselaw discussing the categorical approach in the context of the Armed Career Criminal Act (“ACCA”), but we have already rejected similar attempts to broadly apply the categorical approach outside the ACCA’s context, see United States v. Martinez-Candejas, 347 F.3d 853, 858 (10th Cir. 2003) (“The Supreme Court . . . did not impose the categorical approach as a universal requirement of all sentencing enhancements.”). 12 Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 13
correct. In sum, Mr. Vazquez-Garcia provides no reason to question whether the
procedure in Rule 32(i) is constitutional.
Here, Mr. Vazquez-Garcia never objected to the PSR’s allegations about his
child-abuse conviction despite receiving multiple opportunities to object. In his
sentencing memorandum, Mr. Vazquez-Garcia’s counsel stated she had reviewed the
PSR with him and they had “no objections.” ROA Vol. I at 9. At the sentencing
hearing, counsel again attested that she had reviewed the PSR with Mr. Vazquez-
Garcia and they had “no corrections or objections.” ROA Vol. III at 5. During the
court’s colloquy with Mr. Vazquez-Garcia it repeatedly asked him to explain why he
molested his stepdaughter, but he never asserted that any particular facts in the PSR
were false. Because Mr. Vazquez-Garcia had every opportunity to voice an objection,
yet failed to do so, the district court did not err by adopting the PSR’s allegations as
findings of fact.
Turning next to Mr. Vazquez-Garcia’s argument that the district court erred by
considering his criminal history for purposes of an upward variance, Mr. Vazquez-
Garcia’s criminal background was pertinent to the § 3553(a) factors. Nonetheless, he
argues that “when the applicable Guideline and adjustments account for a factor,
‘departure from the Guideline is permissible only if that factor is present in a manner
or degree unusual enough to distinguish the case from the “heartland” of cases
covered by the Guideline.’” Appellant’s Br. at 18 (quoting United States v. Marquez-
Gallegos, 217 F.3d 1267, 1270 (10th Cir. 2000)). Mr. Vazquez-Garcia thus asserts
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the district court erred by not explaining why his offense fell “outside the heartland
of reentry cases with prior serious felonies.” Id.
This argument fails because a heartland analysis is required only when a
district court departs, rather than varies, from the Guidelines range. See United States
v. Martinez-Barragan, 545 F.3d 894, 900 (10th Cir. 2008). “Departures and variances
are analytically distinct, and courts must be careful not to confuse them.” Id. at 901.
“‘Departure’ is a term of art under the Guidelines and refers only to non-Guidelines
sentences imposed under the framework set out in the Guidelines.” Irizarry v. United
States, 553 U.S. 708, 714 (2008). On the other hand, a variance is a non-Guidelines
sentence arising from a district court’s case-specific analysis of the sentencing
factors in § 3553(a). See id.; United States v. Beltran, 571 F.3d 1013, 1019 (10th
Cir. 2009) (discussing the differences between a variance and “the stricter standard
for a departure”). Although whether a particular offense falls within the heartland of
offenses “involving similar defendants convicted of the same conduct” is relevant to
departures, a district court has independent “discretion to vary [] based on the
§ 3553(a) factors” even when an offense falls in the heartland of similar offenses.
United States v. Gallardo-Medina, 769 F. App’x 546, 549 (10th Cir. 2019)
(unpublished).
Of course, a heartland analysis may be relevant to “the district court’s analysis
of whether to vary from the Guidelines.” Martinez-Barragan, 545 F.3d at 901; see
also Kimbrough v. United States, 552 U.S. 85, 89 (2007) (“[A] district court’s
decision to vary from the advisory Guidelines may attract greatest respect when the
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sentencing judge finds a particular case ‘outside the “heartland” to which the
Commission intends individual Guidelines to apply.’” (quoting Rita v. United States,
551 U.S. 338, 351 (2007))). But Mr. Vazquez-Garcia cites no authority showing the
district court committed a procedural error, let alone a plain procedural error, by not
conducting such an analysis here.
Additionally, § 3553(a)(1) mandates that district courts consider defendants’
“history” when deciding whether to vary from the Guidelines range. The district
court was thus required to consider whether Mr. Vazquez-Garcia’s entire history—
including his criminal history—supported any variance from the Guidelines range,
even though that history was already used to calculate his Guidelines range. See
United States v. Barnes, 890 F.3d 910, 921 (10th Cir. 2018) (explaining that 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 [G]uidelines range” (quotation marks omitted)). The district court did not
commit an error, therefore, by finding that Mr. Vazquez-Garcia’s criminal history
supported an upward variance notwithstanding that it was used to calculate his
Guidelines range.
Accordingly, the district court did not err by adopting the unobjected-to facts
in the PSR or by considering Mr. Vazquez-Garcia’s criminal history for purposes of
an upward variance. Mr. Vazquez-Garcia therefore has not shown that his sentence
was procedurally unreasonable.
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B. Substantive Reasonableness
Mr. Vazquez-Garcia argues his sentence is substantively unreasonable because
the district court “gave inordinate weight to” the conduct underlying his 2018 child-
abuse conviction. Appellant’s Br. at 20. Although the record shows that the district
court placed great weight on Mr. Vazquez-Garcia’s child-abuse conviction, that
conviction and the underlying conduct was highly relevant to several § 3553(a)
factors. The district court thus did not abuse its discretion by attaching great weight
to Mr. Vazquez-Garcia’s abusive conduct in 2018.
1. Standard of Review
“We review a district court’s sentencing decision for substantive
reasonableness under an abuse-of-discretion standard, looking at the totality of the
circumstances.” United States v. Crosby, 119 F.4th 1239, 1246 (10th Cir. 2024)
(quotation marks omitted). “A district court abuses its discretion when it renders a
judgment that is arbitrary, capricious, whimsical, or manifestly unreasonable.” Id.
(quotation marks omitted). In conducting this review, we consider “whether the
length of the sentence is reasonable given all the circumstances of the case in light of
the factors set forth in 18 U.S.C. § 3553(a).” Jackson, 82 F.4th at 949 (quotation
marks omitted). Even when a sentence falls “outside the Guidelines range,” we must
“give due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall v. United States, 552 U.S. 38, 51
(2007).
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At the same time, reasonableness review “must not be regarded as a rubber
stamp.” United States v. Pinson, 542 F.3d 822, 836 (10th Cir. 2008). When a district
court “decides that an outside-Guidelines sentence is warranted, [it] must consider
the extent of the deviation and ensure that the justification is sufficiently compelling
to support the degree of the variance.” Gall, 552 U.S. at 50. As such, a major
variance “should be supported by a more significant justification than a minor one.”
Id. Further, closer review of a sentence “may be in order when the sentencing judge
varies from the Guidelines based solely on the judge’s view that the Guidelines range
‘fails properly to reflect § 3553(a) considerations’ even in a mine-run case.”
Kimbrough, 552 U.S. at 109 (quoting Rita, 551 U.S. at 351).
Here, the 48-month sentence was a major upward variance. The Guidelines
range for Mr. Vazquez-Garcia’s offense was 24 to 30 months. The average sentence
for defendants with the same offense level and criminal history category was 18 to 19
months. Mr. Vazquez-Garcia’s counsel asked for a Guidelines-range sentence, and
the Government asked for a 28-month sentence. Although no party requested an
above-Guidelines sentence, the district court sentenced Mr. Vazquez-Garcia to 48
months in custody, 18 months above the top Guidelines range and 30 months above
the average sentence for similarly situated defendants. This major variance must “be
supported by a more significant justification than a minor” variance. Gall, 552 U.S.
at 50.
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2. The district court did not abuse its discretion by imposing an above- Guidelines sentence.
Mr. Vazquez-Garcia’s sole argument for substantive unreasonableness is that
the district court placed “inordinate weight” on his child-abuse conviction.
Appellant’s Br. at 20. To be sure, the record shows that the district court was
troubled by the child-abuse conviction. At the sentencing hearing, the district court
directly told Mr. Vazquez-Garcia as much. And the district court closely questioned
Mr. Vazquez-Garcia about that conduct. Similarly, in pronouncing its sentence, the
district court repeatedly referenced the child-abuse conviction: it characterized the
“nature and circumstances of this offense” as Mr. Vazquez-Garcia reentering the
country after “he completed his sentence for child abuse in Florida,” id. at 20; the
court found relevant to his history the “conviction for child abuse, as laid out in [the
PSR], involving the sexual assault of a child,” id.; it described the illegal-reentry
offense as serious because he had “a serious violent conviction against a child,” id.
at 21; and it found there was a heightened need to protect the public because of the
child-abuse conviction, id.
As discussed, the district court could properly consider Mr. Vazquez-Garcia’s
criminal history under § 3553(a)(1). See, e.g., Barnes, 890 F.3d at 921. At the same
time, a district court can abuse its discretion by varying upwards solely because of
past conduct unrelated to the offense of conviction. See United States v. Allen, 488
F.3d 1244, 1259 (10th Cir. 2007). In Allen, we reversed a major upward variance
because it was not based on the defendant’s conviction for distributing drugs but
18 Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 19
rather was based on “uncharged, unrelated misconduct” involving the defendant’s
attempted sexual abuse of a child and solicitation of murder. Id. at 1262. We found
support for this holding in Blakely v. Washington, 542 U.S. 296 (2004), in which the
Supreme Court described as “absurd” the theory “that a judge could sentence a man
for committing murder even if the jury convicted him only of illegally possessing the
firearm used to commit it.” Allen, 488 F.3d at 1261 (quoting Blakely, 542 U.S.
at 306). The Allen court reasoned the situation before it was “precisely the scenario
the Blakely Court labeled as too ‘absurd’ to contemplate: that a judge could sentence
a man for attempted sexual abuse or solicitation of murder, even though he was
convicted only of distribution of methamphetamine.” Id. In sum, a district court may
not sentence a defendant “as if he had committed a totally different and ‘far more
serious[] crime.’” Pinson, 542 F.3d at 838 (quoting Allen, 488 F.3d at 1260).
The Sixth Circuit has also reversed an upward variance based on past conduct
with no “meaningful relationship between the offense of conviction and the
defendant’s alleged likelihood of reoffending.” United States v. Lee, 974 F.3d 670,
681 (6th Cir. 2020). The defendant in Lee was convicted for possession of a stolen
firearm, his Guidelines range was 30 to 37 months, and the district court sentenced
him to 60 months based on criminal history consisting of numerous parole violations
and a 2003 criminal-sexual-contact offense that “the district court found ‘troubling.’”
Id. at 675. The Lee court found dispositive that the present defendant had never
before committed a firearm offense and had “not been convicted of any violent crime
since his [] conviction in 2003, a conviction which occurred fifteen years prior to the
19 Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 20
instant offense.” Id. at 678. The court therefore reversed, reasoning that § 3553(a)
provides no “excuse for a district court to subject a defendant to, what is in essence,
plenary resentencing for his prior offenses—especially when those offenses bear no
similarity to the instant offense.” Id. at 681.
Mr. Vazquez-Garcia’s sentence is dissimilar from those in Allen and Lee
because the conduct underlying Mr. Vazquez-Garcia’s 2018 child-abuse conviction
was relevant to the seriousness of his illegal-reentry offense. Notably, the child-abuse
conviction was not remote: the conduct underlying that conviction occurred five
years prior to Mr. Vazquez-Garcia’s illegal reentry in 2023. Cf. Lee, 974 F.3d at 678
(finding relevant the fifteen-year gap between the defendant’s serious prior and his
offense of conviction). The seriousness of the conduct underlying that conviction was
relevant to the seriousness of Mr. Vazquez-Garcia’s reentry offense because “the
crime of illegal reentry by an alien who has committed a violent felony is a serious
one.” United States v. Guerrero-Carreon, 556 F. App’x 643, 645 (10th Cir. 2014)
(unpublished). The district court therefore reasonably treated the sexual abuse
underlying the child-abuse conviction as pertinent to the seriousness of the offense of
conviction. See Martinez-Barragan, 545 F.3d at 905.
Also relevant was that nothing indicated Mr. Vazquez-Garcia was remorseful
for his actions in 2018 or that he would not abuse other children if he had reentered
the country. When the district court asked Mr. Vazquez-Garcia about the conduct
underlying his child-abuse conviction, he attempted to minimize or deny his actions.
He claimed he did not sexually abuse his stepdaughter, without offering a counter-
20 Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 21
narrative to the allegations in the PSR about the underlying conduct. He stated he
could not remember what had happened because he had been drinking. And he
described the incident underlying his child-abuse conviction as one in which he said
“inappropriate words and create[d] family problems,” without acknowledging that he
sexually abused his stepdaughter. ROA Vol. III at 11. Mr. Vazquez-Garcia had not
taken substance-abuse classes, nor did he testify about any concrete steps he had
completed to prevent himself from abusing other children in the future, other than
purportedly curbing—although not ceasing—his alcohol consumption. In short,
nothing indicated that Mr. Vazquez-Garcia’s relevant personal characteristics had
changed since he sexually abused his stepdaughter in 2018.
Overall, the seriousness of Mr. Vazquez-Garcia’s conduct in 2018 was
relevant to several § 3553(a) factors. As the district court noted, Mr. Vazquez-
Garcia’s conduct in 2018—and his evasive explanations for that conduct when
questioned by the court—was relevant to his “history and characteristics” under
§ 3553(a)(1). See Pinson, 542 F.3d at 836, 838 (affirming a major upward variance
based on a defendant’s dangerous past conduct because that conduct reasonably
illustrated the defendant’s personal characteristics). The severity of Mr. Vazquez-
Garcia’s relatively recent conduct in 2018 was directly pertinent to the “seriousness”
of the illegal-reentry offense under § 3553(a)(2)(A). Finally, the district court
reasonably determined that Mr. Vazquez-Garcia’s attempt to return to the country
despite recently molesting a child indicated a heightened need “to protect the public
from further crimes of the defendant,” under § 3553(a)(2)(C).
21 Appellate Case: 24-2074 Document: 37-1 Date Filed: 03/12/2025 Page: 22
Furthermore, the district court repeatedly noted that Mr. Vazquez-Garcia
rapidly returned to the United States less than a year after he was removed. The
quickness of Mr. Vazquez-Garcia’s return reasonably implicated a need “to afford
adequate deterrence to criminal conduct,” by deterring future illegal reentries, under
§ 3553(a)(2)(B).
In sum, the district court’s focus on the conduct underlying Mr. Vazquez-
Garcia’s child-abuse conviction was not “manifestly unreasonable” because that
conduct was directly relevant to multiple § 3553(a) factors. Crosby, 119 F.4th at
1246 (quotation marks omitted). Accordingly, the district court did not abuse its
discretion by imposing this above-Guidelines sentence.
IV. CONCLUSION
For the reasons above, we AFFIRM the district court’s sentence.