Eleventh Circuit Reaffirms Nonreviewability of Discretionary Denials of Downward Departures Absent a Misapprehension of Authority

1. Introduction

In United States v. Ricardo Villanueva-Martinez (11th Cir. Aug. 14, 2026) (unpublished), the Eleventh Circuit reviewed a 35 months and 2 days sentence for illegal reentry following removal, in violation of 8 U.S.C. § 1326(a) & (b)(2). The defendant, Ricardo Villanueva-Martinez, argued (i) the district court erred by denying a downward departure tied largely to his youth at the time of a prior robbery conviction and (ii) the sentence was substantively unreasonable under 18 U.S.C. § 3553(a).

The appeal presented two core issues: (1) whether the court of appeals had authority to review a district court’s discretionary refusal to depart downward under the Sentencing Guidelines, and (2) whether the district court abused its discretion by allegedly overemphasizing criminal history and underweighting mitigation (family and rehabilitation).

2. Summary of the Opinion

The panel affirmed. It held that it lacked jurisdiction to review the district court’s discretionary decision not to grant the requested downward departure because the record showed the district court understood its authority to depart and simply exercised discretion not to. It further held the sentence was substantively reasonable: the district court considered the § 3553(a) factors, addressed mitigation, and imposed a sentence effectively at the low end of the advisory range and far below the 20-year statutory maximum.

Judge Abudu concurred, agreeing the panel was bound by circuit precedent, but questioning whether the “lack of jurisdiction” framing for discretionary departure denials is correct in light of more recent Supreme Court “clear statement” jurisdictional doctrine.

3. Analysis

3.1. Precedents Cited

A. Appellate review framework for sentences

  • United States v. Trailer, 827 F.3d 933 (11th Cir. 2016): supplied the “two-step process” for reviewing sentences (procedural reasonableness, then substantive reasonableness).
  • United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): set the abuse-of-discretion standard for substantive reasonableness and catalogued the three principal ways a district court can abuse its discretion; also emphasized that sentences are affirmed if they are “in the ballpark of permissible outcomes” (quoting United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015)).
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): reinforced the abuse-of-discretion framework for substantive review.
  • Gall v. United States, 552 U.S. 38 (2007): confirmed Guidelines are the “starting point” and all sentences are reviewed for reasonableness under a deferential standard; used to contextualize the centrality of the Guidelines in the sentencing process.

B. Nonreviewability (as framed by Eleventh Circuit precedent) of discretionary denials of departures

  • United States v. Pressley, 345 F.3d 1205 (11th Cir. 2003): drew the key distinction—no review of discretionary refusals to depart, but de novo review if the district court erroneously believed it lacked authority to depart (citing United States v. Mignott, 184 F.3d 1288 (11th Cir. 1999)).
  • United States v. Winingear, 422 F.3d 1241 (11th Cir. 2005); United States v. Ortega, 358 F.3d 1278 (11th Cir. 2003); United States v. Fossett, 881 F.2d 976 (11th Cir. 1989): supplied the panel’s controlling rule that discretionary refusals to depart are not reviewable when the sentencing court understood its authority.
  • United States v. Dudley, 463 F.3d 1221 (11th Cir. 2006) and United States v. Chase, 174 F.3d 1193 (11th Cir. 1999): established that an explicit on-the-record statement of “I have authority” is not required; absent contrary indications, the court of appeals presumes the district court understood it could depart.
  • United States v. Alfaro-Zayas, 196 F.3d 1338 (11th Cir. 1999) and United States v. Webb, 139 F.3d 1390 (11th Cir. 1998): referenced by Pressley as examples of legal-error review in the departure context.
  • Beazer v. Richmond Cnty. Constructors, LLC, 169 F.4th 1082 (11th Cir. 2026): invoked for the “oldest precedent controls” principle to resolve internal inconsistency about whether to “affirm” or “dismiss” when the court says it lacks jurisdiction over departure issues.

C. Substantive reasonableness guideposts (within-range presumption-like expectations; statutory maximum comparisons)

  • United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009); United States v. Hunt, 526 F.3d 739 (11th Cir. 2008); United States v. Castaneda, 997 F.3d 1318 (11th Cir. 2021): supported the statement that within-Guidelines sentences are ordinarily expected to be reasonable.
  • United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008) and United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014): supported the use of a “well below the statutory maximum” comparison as an indicator of reasonableness.
  • United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007) and United States v. Al Jaberi, 97 F.4th 1310 (11th Cir. 2024): supported the point that a district court’s failure to discuss mitigating evidence at length does not mean it ignored it.
  • United States v. Shaw, 560 F.3d 1230 (11th Cir. 2009): reinforced that a district court may attach great weight to one factor over others.
  • United States v. Tome, 611 F.3d 1371 (11th Cir. 2010): cited alongside the burden-to-show-unreasonableness principle.

D. Guidelines timing and ex post facto

  • United States v. Maurya, 25 F.4th 829 (11th Cir. 2022): used to explain that courts generally apply the Guidelines in effect at sentencing, limited by Ex Post Facto concerns; this undercut any implied obligation to apply a not-yet-effective (and likely non-retroactive) 2024 amendment.

E. Concurring opinion’s jurisdictional-doctrine authorities

Judge Abudu’s concurrence relied on Supreme Court “clear statement” jurisdictional doctrine and related appellate-jurisdiction concepts, citing: Boechler, P.C. v. Comm'r, 596 U.S. 199 (2022); Kontrick v. Ryan, 540 U.S. 443 (2004); Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428 (2011); Sebelius v. Auburn Reg'l Med. Ctr., 568 U.S. 145 (2013); Bowe v. United States, 607 U.S. 13 (2026); Wilkins v. United States, 598 U.S. 152 (2023); Mata v. Lynch, 576 U.S. 143 (2015); Colo. River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982); Santos-Zacaria v. Garland, 598 U.S. 411 (2023); United States v. Henry, 1 F.4th 1315 (11th Cir. 2021); Steel Co. v. Citizens for a Better Env't, 523 U.S. 83 (1998); Ex parte McCardle, 74 U.S. 506 (1869); and circuit examples such as United States v. Solomon, 136 F.4th 1310 (11th Cir. 2025). The concurrence also referenced United States v. Booker, 543 U.S. 220 (2005), and the Eleventh Circuit’s prior departure-review lineage including United States v. Chotas, 913 F.2d 897 (11th Cir. 1990).

3.2. Legal Reasoning

A. Procedural reasonableness / departure review: the panel’s jurisdiction holding

The panel treated the “downward departure” challenge as categorically unreviewable when the district court understood it had authority to depart. Applying United States v. Pressley and its progeny, the court emphasized: (i) it can review only whether the district court mistakenly believed it lacked authority, and (ii) if the court understood its authority and simply declined as a matter of discretion, appellate review is foreclosed.

The record showed no misunderstanding of authority: the district judge heard and engaged the arguments under U.S.S.G. § 2L1.2, comment. (n.6) and the proposed U.S.S.G. § 5H1.1 (2024), explained why the amendment would not be applied because it was not yet effective, and independently found a departure unwarranted given the severity of the robbery. Under United States v. Chase and United States v. Dudley, no explicit “I know I can depart” statement was required; absent a contrary signal, the court presumed awareness of authority.

The court therefore concluded it lacked jurisdiction to reach the merits of the discretionary departure denial and affirmed on that issue.

B. Substantive reasonableness: repeated immigration offenses vs. mitigation

On substantive reasonableness, the panel applied the deferential abuse-of-discretion framework from United States v. Butler and United States v. Trailer and emphasized three points:

  • The district court may give “great weight” to one factor (here, repeated immigration offenses and criminal history). See Butler; United States v. Shaw.
  • A court need not discuss mitigation at length so long as it acknowledges consideration of the parties’ arguments and § 3553(a) factors. See United States v. Amedeo; United States v. Al Jaberi.
  • The sentence sat at the practical low end of the advisory range (accounting for the 58-day adjustment) and far below the statutory maximum, which tends to support reasonableness. See United States v. Sarras; United States v. Gonzalez; United States v. Dougherty.

The district court expressly noted both aggravation (repeated illegal reentries after removal and a serious felony history) and mitigation (impoverished upbringing, family support obligations, “sympathetic history”). It also stated it considered imposing a longer sentence than the government sought, but declined. On this record, the panel found no “clear error of judgment” under Butler and affirmed.

3.3. Impact

A. Practical rule reaffirmed (though unpublished)

While “NOT FOR PUBLICATION” opinions are not binding precedent, this decision reflects the continued application of an entrenched Eleventh Circuit rule: discretionary denials of downward departures are not appealable absent a claim that the district court misunderstood its authority. Litigants seeking appellate review must therefore frame the issue as legal error (e.g., misapprehension of authority or incorrect Guidelines application), not mere disagreement with the district court’s discretionary weighing.

B. Growing tension: concurrence invites en banc reconsideration

Judge Abudu’s concurrence signals a potential doctrinal shift: it questions whether the “lack of jurisdiction” label is compatible with the Supreme Court’s instruction that a limitation is jurisdictional only if Congress “clearly states” it is (citing Bowe v. United States and Boechler, P.C. v. Comm'r). The concurrence suggests 18 U.S.C. § 3742(a) may be better understood as defining appealable claims (a nonjurisdictional limitation) rather than stripping Article III adjudicatory power—an argument that could matter for waiver/forfeiture, remedies (affirm vs dismiss), and the court’s obligation to decide.

C. Sentencing advocacy consequences

The opinion also underscores a tactical reality: even when a court denies a “departure,” district judges may still credit the same facts through § 3553(a) in the “variance” analysis—here, the court explicitly treated the departure arguments as relevant mitigation under § 3553(a). Defendants should therefore develop a dual record: Guidelines-based departure grounds and independent § 3553(a) variance grounds.

4. Complex Concepts Simplified

  • Downward departure vs. variance: A departure is an adjustment authorized by the Guidelines themselves (e.g., a commentary note inviting departures in atypical cases). A variance is a non-Guidelines adjustment based on the broader statutory sentencing factors in 18 U.S.C. § 3553(a). Courts often consider the same life facts under both labels, but appellate review can differ.
  • Procedural vs. substantive reasonableness: Procedural focuses on the method (correct Guidelines calculation, consideration of § 3553(a), adequate explanation). Substantive focuses on the outcome (whether the final sentence is within the range of permissible choices).
  • “We lack jurisdiction” in this context: Under existing Eleventh Circuit precedent, the court of appeals treats discretionary refusals to depart as outside its review authority—unless the district judge mistakenly believed a departure was legally impossible. Judge Abudu’s concurrence questions whether this is truly “jurisdictional” in the strict Supreme Court sense.
  • Guidelines effective date / non-retroactivity: Courts typically apply the Guidelines manual in effect at sentencing (subject to Ex Post Facto constraints). A proposed or future amendment—like the referenced U.S.S.G. § 5H1.1 (2024)—generally does not apply until effective and may not be retroactive.

5. Conclusion

United States v. Ricardo Villanueva-Martinez reaffirms two enduring features of Eleventh Circuit sentencing review: (1) absent a district court’s legal misunderstanding of its authority, a discretionary refusal to grant a downward departure is not reviewable on appeal under circuit precedent; and (2) within-range (or effectively low-end) sentences supported by an on-the-record § 3553(a) analysis are difficult to overturn as substantively unreasonable. The concurring opinion, however, highlights a live doctrinal pressure point—whether the “no jurisdiction” framing for departure denials survives the Supreme Court’s modern, strict approach to what counts as “jurisdictional.”