Clarifying Downward Variance Requirements Under §3553(a): United States v. Ortiz-Soto

Introduction

United States v. Ortiz-Soto, 1st Cir. No. 21-1687 (May 1, 2025), marks a significant clarification of the standards governing downward variances under 18 U.S.C. §3553(a). In this appeal, Giovanni Ortiz-Soto (“Ortiz”) challenged his 180-month sentence for conspiracy to distribute controlled substances within a protected location (Count 1) and a consecutive 120-month sentence for using a firearm in a drug-trafficking offense (Count 2). Ortiz argued that his sentence on Count 1 was procedurally flawed and substantively unreasonable because the district court failed to provide an adequately detailed explanation for imposing a variance below life imprisonment. The First Circuit rejected those contentions, reaffirming both the scope of a sentencing court’s obligation to explain variances and the deference owed to its exercise of discretion.

Summary of the Judgment

• Offense and Plea: Ortiz was part of a large drug-trafficking organization in Puerto Rico, holding roles as leader, runner and enforcer, and participated in multiple murders. He pled guilty to Count 1 (21 U.S.C. §§841(a)(1), 846, 860) and Count 2 (18 U.S.C. §924(c)(1)(A)).
• Guideline Calculations: The Presentence Investigation Report (PSI) calculated a base offense level of 43 for Count 1 (capped at 43 under U.S.S.G. ch. 5, pt. A, comment n.2), yielding a life imprisonment range. Count 2 carried a statutory minimum of 60 months.
• Joint Recommendation: Both parties recommended a downward variance to 120 months on Count 1 and an upward variance to 120 months on Count 2, but acknowledged the recommendation was non-binding.
• District Court’s Sentence: After weighing the 18 U.S.C. §3553(a) factors—especially Ortiz’s leadership and violent conduct—the court imposed 180 months on Count 1 (a 60-month deeper variance) and 120 months on Count 2, to run consecutively (total 300 months).
• Appellate Holding: The First Circuit affirmed. It held (1) the court’s explanation satisfied §3553(c) by identifying the “main factors” driving its decision, and (2) the downward variance fell well within the universe of reasonable sentences.

Analysis

Precedents Cited

The opinion draws upon established First Circuit and Supreme Court precedents to frame both procedural and substantive reasonableness:

• Procedural Framework:
  • 18 U.S.C. §3553(c) – requires the sentencing court to state reasons in open court.
  • United States v. Gall, 552 U.S. 38 (2007) – guidelines as the “starting point and initial benchmark.”
  • United States v. Vargas, 560 F.3d 45 (1st Cir. 2009) – sourcing facts from plea colloquy and PSI in Rule 11 cases.
  • United States v. Sepúlveda-Hernández, 817 F.3d 30 (1st Cir. 2016) – courts need only identify main §3553(a) factors.
  • United States v. Turbides-Leonardo, 468 F.3d 34 (1st Cir. 2006) – forbids “pedantry” in explanations.
• Plain-Error Review:
  • United States v. Duarte, 246 F.3d 56 (1st Cir. 2001) – outlines four-part plain-error test.
  • United States v. Hunnewell, 891 F.2d 955 (1st Cir. 1989) – underscores the high hurdle for plain error.
• Substantive Reasonableness:
  • United States v. Vargas-Dávila, 649 F.3d 129 (1st Cir. 2011) – “reasonableness is a protean concept.”
  • United States v. Concepcion-Guliam, 62 F.4th 26 (1st Cir. 2023) – variance “rests on a plausible rationale.”
  • United States v. Holguin-Hernandez, 589 U.S. 169 (2020) – abuse-of-discretion standard applies.

Legal Reasoning

The First Circuit’s decision unfolds in two strands of analysis: procedural and substantive reasonableness.

1. Procedural Reasonableness
   • The court applied plain-error review since Ortiz did not object below. Under Duarte, Ortiz had to show (i) error, (ii) clear or obvious, (iii) affected substantial rights, and (iv) impaired the integrity of proceedings. He failed at step (1): no error occurred.
   • Section 3553(c) requires a statement of reasons “in open court.” The district court properly:
   • – Confirmed guideline calculations.
   • – Reviewed §3553(a) factors (history, leadership role, violent acts, deterrence, public protection).
   • – Explained why 120 months “did not reflect the seriousness of the offense” and why 180 months did.
   • This explanation is neither pedantic nor eerily identical to the parties’ recommendations; it identifies the “main factors” under Sepúlveda-Hernández. Arguments that the court over-emphasized criminal history or re-litigated guideline factors are unavailing: courts always consider offense conduct and criminal history when evaluating §3553(a).
2. Substantive Reasonableness
   • Under an abuse-of-discretion lens (Holguin-Hernandez), the question is whether the sentence has a “plausible rationale” (Concepcion-Guliam) and falls within the broad universe of reasonable outcomes.
   • Ortiz’s deeper variance (from life to 180 months) is justified by:
   • – His pivotal leadership and recruitment within a violent drug enterprise.
   • – Firearm use and participation in three murders.
   • – The need for specific deterrence and public protection.
   • Given those weighty aggravating facts, the 180-month term sits well within the range of defensible sentences. Ortiz’s challenge thus cannot surmount the heavy burden placed on defendants contesting downward variances.

Impact

The Ortiz-Soto decision reinforces and refines the First Circuit’s approach to variances:

• It reaffirms that sentencing courts need not mechanically compare every variance to the parties’ recommendations or recite every mitigating and aggravating detail.
• It underscores that explaining the main §3553(a) factors suffices for meaningful appellate review and public confidence.
• It illustrates deference to district courts in calibrating variances when significant violence or leadership roles in criminal enterprises are involved.
• It clarifies the distinction between departures (based on guideline-absent factors) and variances (within §3553(a)), preventing semantic conflation on appeal.

Complex Concepts Simplified

• Departure vs. Variance:
  • A departure arises when the court uses factors not enumerated in the Guidelines to move outside the guideline range.
  • A variance is a discretionary adjustment up or down under §3553(a), even if the Guidelines already accounted for those factors.
  • In Ortiz-Soto, the variance from life to 180 months was a downward variance—not a departure—because it rested on §3553(a) considerations already in the Guidelines.
• Plain-Error Review:
  • When a defendant does not object at sentencing, appellate courts review only for “plain” error—error that is clear, affects substantial rights, and undermines the fairness of proceedings.
  • Ortiz failed to show any procedural flaw at the outset, so the plain-error test was not met.
• “Universe of Reasonable Outcomes”:
  • There is no single “correct” sentence; rather, courts recognize a broad range of reasonable sentences factoring in offense seriousness, deterrence, rehabilitation, and public safety.
  • As long as a chosen variance has a defensible rationale and aligns with §3553(a), it will stand.

Conclusion

United States v. Ortiz-Soto confirms that sentencing courts satisfy both procedural and substantive reasonableness under §3553(a) by identifying the principal factors driving their variance decisions—without unnecessary pedantry or rote recitation. The decision underscores the strong deference owed to district courts when they reconcile the gravity of violent, organized criminal conduct with the goals of punishment, deterrence and public protection. Ortiz-Soto thus serves as a touchstone for practitioners and judges alike, signaling that a well-articulated “main factors” analysis will survive appellate scrutiny so long as it is anchored in §3553(a) and the unique circumstances of each case.