Eleventh Circuit Upholds 125% Upward Variance for Illegal Reentry Where Guidelines Understate Recidivism and Public Danger

Introduction

In United States v. Arael Martinez Perez, the U.S. Court of Appeals for the Eleventh Circuit affirmed a 36-month sentence imposed for illegal reentry after removal, despite a Sentencing Guidelines range of only 10 to 16 months. The case centers on whether such a substantial upward variance—125% above the high end of the advisory range—was substantively reasonable under 18 U.S.C. § 3553(a). The defendant argued that his case was typical (“run-of-the-mill”) and that national sentencing data showed the variance was excessive. The panel, in an unpublished per curiam decision, rejected these arguments, emphasizing the district court’s individualized assessment: the Guidelines understated the defendant’s criminal history, his record showed persistent recidivism and danger to the public (including multiple DUIs and a domestic violence conviction), and repeated removals had failed to deter him.

The ruling clarifies, within the Eleventh Circuit, that a substantial upward variance in illegal reentry cases may be reasonable where the record demonstrates underrepresented criminal history and sustained public-safety risks—even where national averages suggest such variances are unusual.

Summary of the Judgment

The district court sentenced Arael Martinez Perez to 36 months’ imprisonment and three years of supervised release for illegal reentry in violation of 8 U.S.C. § 1326(a), (b)(2), a statute carrying a 20-year maximum when a prior aggravated felony is involved. The Presentence Investigation Report (PSI) calculated a total offense level of 10 under U.S.S.G. § 2L1.2 (base level 8, plus 4 levels for a prior illegal reentry conviction, minus 2 for acceptance), and a criminal history category III, yielding a 10–16 month advisory range.

The district court varied upward to 36 months, noting that the Guidelines did not fully capture the seriousness of the defendant’s criminal past and the risk he posed to the community—citing multiple DUIs, a domestic violence conviction, forgery, two prior illegal reentry convictions, four prior removals, multiple additional arrests (including active DUI and driving-without-license warrants), and ongoing disregard for the law. On appeal, the Eleventh Circuit affirmed, holding that the sentence was substantively reasonable under the deferential abuse-of-discretion standard. The court rejected the defendant’s “mine-run” characterization and his reliance on national statistics regarding upward variances, emphasizing that an individualized, fact-specific justification supported the district court’s decision and that the sentence remained well below the statutory maximum.

Case Background

Offense: Illegal reentry after removal following an aggravated felony, in violation of 8 U.S.C. § 1326(a), (b)(2).
Criminal history highlights: Prior convictions for forgery, domestic abuse, multiple DUIs, and two prior illegal reentries; four prior removals; several additional arrests and active warrants.
Guidelines calculation: Offense level 10; criminal history category III; advisory imprisonment range of 10–16 months.
Sentence imposed: 36 months’ imprisonment and three years’ supervised release—an upward variance.
Primary appellate issues: Whether the case was “run-of-the-mill,” requiring closer scrutiny of a large variance; whether a 125% upward variance is “greater than necessary” given national sentencing data.

Detailed Analysis

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007): The Supreme Court established that appellate review of sentencing decisions is for abuse of discretion, regardless of whether the sentence falls inside or outside the Guidelines. Gall instructs that while the degree of variance matters, district courts need not meet a heightened “extraordinary circumstances” test; rather, they must provide sufficiently compelling justifications tied to the § 3553(a) factors. The panel relied on Gall’s deferential framework, reminding that even significant variances can be reasonable when supported by specific case facts.
United States v. Overstreet, 713 F.3d 627 (11th Cir. 2013): The Eleventh Circuit precedent reiterating Gall’s abuse-of-discretion standard. Cited to confirm the uniform standard applied to all sentences.
Kimbrough v. United States, 552 U.S. 85 (2007) and Rita v. United States, 551 U.S. 338 (2007): These decisions address how to treat “mine-run” cases and policy disagreements with the Guidelines. The Eleventh Circuit quoted Kimbrough’s point that “closer review may be in order” where a judge varies based solely on a policy disagreement about the Guidelines in a typical case. The panel held that this principle did not control here because the variance was not a mere policy disagreement; it rested on particularized facts demonstrating underrepresented criminal history and danger.
United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014): The Eleventh Circuit has treated a sentence well below the statutory maximum as an indicator—though not a presumption—of reasonableness. The panel invoked this to reinforce that a 36-month sentence, far below the 20-year maximum under § 1326(b)(2), fell within the bounds of reasoned discretion.

Legal Reasoning

The appellate court affirmed based on several interlocking strands of reasoning, each grounded in § 3553(a) factors and in the deferential standard of review:

Individualized assessment over “mine-run” labels: The court rejected the defendant’s assertion that his case was typical because many illegal reentry defendants have prior convictions and CHCs of II or III. Here, the district court made a specific and supported finding that the criminal history category understated the defendant’s record and risk. Several prior convictions did not score due to age; there were multiple additional arrests and active warrants; and he had a sustained pattern of dangerous conduct (multiple DUIs, a domestic violence conviction) and repeated illegal reentries after four removals. These individual facts removed the case from any “mine-run” baseline.
Protection of the public and deterrence: The court emphasized § 3553(a)(2)(C)’s public safety objective. Repeated DUI conduct over two decades, combined with recidivist illegal reentry, showed that prior sanctions had not deterred the defendant and that community risk remained. The district court could therefore reasonably impose a longer sentence to protect the public and promote respect for the law.
Guidelines underrepresentation: Although § 2L1.2 attempts to account for criminal history, the district court concluded—and the Eleventh Circuit accepted—that the Guidelines did not fully capture the seriousness of the defendant’s background, particularly unscored convictions and the pattern of conduct reflected by arrests and warrants. This provided a rational, case-specific basis for variance.
Statistical averages do not control substantive reasonableness: The defendant highlighted that only 1.4% of illegal reentry cases receive an upward variance and that the average upward variance is 74.6%—far less than 125%. The court held that national averages cannot override a district court’s individualized § 3553(a) analysis. Substantive reasonableness turns on the record in the case, not on conformity to national variance frequencies or averages.
Sentence far below the statutory maximum: The sentence’s distance from the 20-year ceiling served as a further indicator of reasonableness under Eleventh Circuit precedent.

What This Decision Clarifies

A substantial upward variance in illegal reentry cases can be affirmed when the district court offers an individualized, fact-driven explanation grounded in § 3553(a), particularly where the Guidelines understate criminal history and public safety concerns.
“Mine-run” arguments and national Sentencing Commission averages carry limited weight against a robust, record-based justification for variance.
District courts may consider prior convictions that do not score and may reference arrest history and active warrants as part of the broader assessment of risk and respect for the law, especially where this information appears in the PSI and is not successfully contested.
A sentence well below the statutory maximum continues to serve as an additional indicator of reasonableness in the Eleventh Circuit.

Impact and Implications

Although designated “not for publication” and thus non-precedential, the decision is instructive in several ways:

Sentencing practice in illegal reentry: The opinion signals that courts in the Eleventh Circuit will uphold significant upward variances where the record shows repeated illegal entries combined with other public safety risks (e.g., multiple DUIs, domestic violence). Defense counsel should anticipate and address these factors directly.
Role of unscored convictions and arrest history: Where prior convictions fall outside the scoring window, and where the PSI documents additional arrests or active warrants, courts may view the Guidelines range as understated. Practitioners should be prepared to litigate the reliability and relevance of such information at sentencing.
Limited leverage from national statistics: The court’s rejection of the defendant’s reliance on national variance rates suggests that statistical rarity alone will not render a variance unreasonable. Parties should focus on case-specific facts, mitigation, and tailored § 3553(a) arguments.
Emphasis on deterrence and public safety over uniformity: While § 3553(a)(6) cautions against unwarranted disparities, this decision underscores that individualized factors related to deterrence and protection of the public may warrant diverging from the typical range and outcomes.
Practical defense considerations: To counter upward variances, defense counsel should consider:
- Objecting to PSI references to arrests or warrants that lack reliable evidentiary support.
- Presenting evidence of rehabilitation, treatment plans (especially for substance use disorders), and structured supervision alternatives.
- Addressing why prior DUIs or domestic incidents do not predict future danger and proposing specific conditions to mitigate risk.
- Explaining why removal and supervised-release terms suffice to protect the public.

Complex Concepts Simplified

Substantive reasonableness: On appeal, the question is not whether the appellate court would impose the same sentence but whether the district court’s chosen sentence falls within a range of reasonable outcomes based on the § 3553(a) factors and the record.
Abuse-of-discretion review: A highly deferential standard. The appellate court asks whether the district court made a clear error of judgment, not whether a different sentence might also have been reasonable.
Upward variance vs. departure: A “variance” is a sentence outside the advisory Guidelines range based on statutory sentencing factors, whereas a “departure” is a within-Guidelines mechanism allowing movement based on enumerated policy statements. This case concerns a variance.
Criminal History Category (CHC): The Guidelines assign points to prior convictions within certain time frames, producing a CHC I–VI. Older convictions may not count, potentially understating a defendant’s true record—one reason courts sometimes vary upward.
“Mine-run” case: A typical case for which the Guidelines are presumed to work as designed. When a case is atypical—due to underrepresented criminal history or special risks—the Guidelines may provide a less accurate recommendation.
Statutory maximum as a reasonableness indicator: While not dispositive, a sentence far below the maximum penalty authorized by Congress can suggest the sentence is not excessive.
Presentence Investigation Report (PSI): A report prepared by probation that compiles the defendant’s background, criminal record, and other relevant information. Facts in a PSI can be relied upon if not meaningfully disputed and if they bear sufficient indicia of reliability.

Conclusion

The Eleventh Circuit’s decision in United States v. Arael Martinez Perez reinforces the broad discretion district courts possess to impose significant upward variances in illegal reentry cases where the Guidelines understate the defendant’s criminal history and risk to public safety. The panel rejected the defendant’s effort to frame his case as “run-of-the-mill” and discounted reliance on national variance statistics, focusing instead on an individualized record of recidivism, repeated illegal reentries after multiple removals, and dangerous conduct (notably serial DUIs and a domestic violence conviction). By emphasizing the protection of the public and the inadequacy of prior sanctions to deter, and noting the sentence’s distance from the statutory maximum, the court concluded that 36 months was “sufficient, but not greater than necessary.”

Key takeaway: In the Eleventh Circuit, a well-reasoned, fact-specific explanation tethered to § 3553(a)—especially one highlighting public safety and underrepresented criminal history—can sustain even a large upward variance in illegal reentry cases. While unpublished and thus non-binding, the opinion offers practical guidance for sentencing advocacy on both sides of the aisle.