Fifth Circuit: Under Plain-Error Review, Sentencing Misstatements Require a Showing They “Loomed Large” and Likely Changed the Sentence

I. Introduction

In United States v. Lopez-Soria (5th Cir. Feb. 3, 2026) (unpublished), the Fifth Circuit affirmed an 86-month, within-Guidelines sentence for illegal reentry under 8 U.S.C. § 1326(a) and (b)(1). The defendant, Gustavo Adrian Lopez-Soria, argued his sentence was both procedurally and substantively unreasonable because the district court misstated two aspects of his criminal/immigration history at sentencing: (1) it referred to “three prior removals” though the PSR reflected only two; and (2) it stated he committed new offenses “each time” he illegally returned, though his convictions did not neatly correspond to every reentry interval.

The core appellate issue was not whether the statements were inaccurate (the panel largely assumed they were), but whether—given Lopez-Soria’s failure to object at sentencing—those inaccuracies satisfied plain-error review, particularly the “substantial rights” requirement.

II. Summary of the Opinion

The panel (Duncan, J., joined by Graves, J.; Dennis, J., dissenting) held that even assuming the district court relied on “clearly erroneous facts” (a procedural error under Gall v. United States), Lopez-Soria could not obtain relief because he failed to show a reasonable probability that correcting those misstatements would have produced a lower sentence. The court further held that the same failure defeated his substantive-reasonableness challenge under plain-error review, especially given the presumption of reasonableness for within-Guidelines sentences.

Judge Dennis dissented, reasoning that the misstatements “loomed large” in the district court’s explanation and materially influenced the sentencing choice, warranting vacatur and remand.

III. Analysis

A. Precedents Cited

  • United States v. Nguyen, 854 F.3d 276 (5th Cir. 2017) and United States v. Delgado-Martinez, 564 F.3d 750 (5th Cir. 2009)
    Role in the opinion: These cases supply the Fifth Circuit’s two-step sentencing review framework: (1) procedural reasonableness first; (2) substantive reasonableness second.
  • United States v. Sepulveda, 64 F.4th 700 (5th Cir. 2023)
    Role in the opinion: Establishes that when a defendant fails to object to sentencing error in the district court, appellate review is for plain error for both procedural and substantive claims.
  • United States v. Wilson, 143 F.4th 647 (5th Cir. 2025) and Puckett v. United States, 556 U.S. 129 (2009)
    Role in the opinion: These authorities frame the four-part plain-error test and emphasize that even a plain error is not corrected unless it affects substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • Gall v. United States, 552 U.S. 38 (2007)
    Role in the opinion: Provides the key procedural-error principle: a sentence is procedurally unreasonable if the court selects it based on “clearly erroneous facts.”
  • United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (en banc) and United States v. Broussard, 669 F.3d 537 (5th Cir. 2012)
    Role in the opinion: These cases define how a defendant proves the third prong of plain error at sentencing: the defendant must show the error likely affected the outcome—often articulated as a “reasonable probability” of a lower sentence on remand. Escalante-Reyes is also used as a contrast: relief is warranted when an improper consideration “loomed large” or was central to the sentencing explanation.
  • United States v. Williams, 620 F.3d 483 (5th Cir. 2010)
    Role in the opinion: Supplies the panel’s key analytic lever: when the sentencing court gives a “lengthy and weighted discussion of other significant, permissible factors,” a particular error is less likely to have affected the sentence.
  • United States v. Garcia-Servin, 846 F. App’x 294 (5th Cir. 2021)
    Role in the opinion: Reinforces (in a factually similar removals-count scenario) that a minor error in the number of removals, without more, often cannot support the necessary “reasonable probability” of a lower sentence.
  • United States v. Zarco-Beiza, 24 F.4th 477 (5th Cir. 2022) and United States v. Cooks, 589 F.3d 173 (5th Cir. 2009)
    Role in the opinion: Provide the standards for substantive reasonableness and the presumption that a within-Guidelines sentence is reasonable; Cooks identifies ways to rebut that presumption (e.g., significant weight to an improper factor).
  • United States v. Ibarra, No. 24-20071, 2024 WL 5118485 (5th Cir. Dec. 16, 2024)
    Role in the dissent: Cited for the proposition that resentencing is appropriate when a sentence was influenced “to a considerable extent” by mistaken facts, supporting the dissent’s view that the misstatements mattered.

B. Legal Reasoning

1. Procedural reasonableness: “clearly erroneous facts” assumed, but no showing of prejudice

The panel proceeded in a structured way. It acknowledged the Gall rule that sentencing based on clearly erroneous facts is procedural error. Without definitively resolving whether the district court’s statements were “clearly erroneous,” the panel assumed error (and plainness) and focused on the decisive question under plain-error review: whether Lopez-Soria established that the error affected his substantial rights.

Applying Escalante-Reyes and Broussard, the panel required a “reasonable probability” of a lower sentence absent the misstatements. Using Williams, it then assessed how prominent the inaccuracies were in the district court’s reasoning:

  • The “three prior removals” remark was mentioned only once and embedded in a broader, accurate discussion of Lopez-Soria’s record, including his unlawful reentry conviction and multiple drug and escape convictions.
  • The “new criminal offenses each time” phrasing was treated as, at most, a minor timeline imprecision, because the uncontested bottom line remained: Lopez-Soria committed seven crimes while unlawfully present.
  • The sentencing judge relied on permissible 18 U.S.C. § 3553(a) considerations—history and characteristics, nature/circumstances, and promoting respect for the law—such that the inaccuracies did not appear to be the “basis” for the sentence (the key defect in Escalante-Reyes).

In short, the panel’s controlling principle is practical and allocation-of-risk driven: absent a contemporaneous objection, even a mistaken sentencing fact will not justify relief unless the record shows the mistake was central enough to likely move the final number.

2. Substantive reasonableness: within-Guidelines presumption plus no plain-error prejudice

On substantive reasonableness, the panel emphasized that a within-Guidelines sentence is presumptively reasonable under Cooks. To overcome that presumption, Lopez-Soria needed to show the district court gave significant weight to an improper factor or otherwise clearly misbalanced the § 3553(a) factors. But because the misstatements did not materially drive the court’s reasoning (in the panel’s view), he could not show the necessary effect on substantial rights under plain-error review, as discussed in Zarco-Beiza.

3. The dissent’s competing account: the misstatements “loomed large”

Judge Dennis read the sentencing transcript differently. In his view, the incorrect removals count and the mischaracterization of “each time” functioned as “aggravating” facts that the district court repeatedly emphasized when explaining why it intended a maximum Guidelines sentence, making the errors consequential under Escalante-Reyes and consistent with the “considerable extent” language discussed in United States v. Ibarra.

The divide between the majority and dissent is therefore not over doctrine, but over record characterization: whether the errors were peripheral (majority) or central (dissent).

C. Impact

  • Reinforces a demanding prejudice showing for unobjected-to factual errors. The opinion underscores that defendants who fail to object at sentencing face a steep uphill climb: they must demonstrate not merely inaccuracy, but likely effect on the sentence.
  • Signals how “loomed large” is operationalized. By contrasting isolated misstatements with a “weighted discussion of other significant, permissible factors,” the panel indicates that “loomed large” requires more than repetition or rhetorical emphasis; it requires a persuasive linkage to the chosen sentence length.
  • Practical consequence: incentives for contemporaneous objections. Defense counsel are reminded to correct factual misstatements in real time—especially in illegal reentry cases where removals and criminal-timeline narratives often serve as shorthand for recidivism and deterrence.
  • Limited precedential force but informative guidance. The decision is “not designated for publication,” meaning it is not binding precedent in the same way as published Fifth Circuit opinions; nonetheless, it illustrates how the court applies established standards (Williams, Escalante-Reyes, Gall) to common sentencing disputes.

IV. Complex Concepts Simplified

  • Procedural vs. substantive reasonableness: Procedural reasonableness asks whether the judge used the right process (correct Guidelines calculation, consideration of § 3553(a), no reliance on clearly wrong facts). Substantive reasonableness asks whether the sentence length is reasonable in light of the permissible factors.
  • Plain-error review: When a defendant does not object at sentencing, the appellate court will reverse only if there is (1) error, (2) that is plain, (3) that likely affected the outcome (substantial rights), and (4) that seriously undermines the fairness or integrity of the proceedings.
  • “Affecting substantial rights” in sentencing: In practice, this means the defendant must show a reasonable probability that the judge would have imposed a lower sentence if the error had not occurred. It is not enough that the judge said something wrong; it must likely matter to the number.
  • § 3553(a) factors: The statutory considerations that guide federal sentencing, including the defendant’s history and characteristics, the offense circumstances, deterrence, public protection, and promoting respect for the law.
  • Within-Guidelines presumption: If the sentence falls inside the advisory Guidelines range, appellate courts presume it is reasonable; the defendant must rebut that presumption with a strong showing (e.g., reliance on improper factors).

V. Conclusion

United States v. Lopez-Soria applies settled Fifth Circuit and Supreme Court sentencing doctrines to a recurring scenario: a district court’s misstatement of a defendant’s removals count and criminal-timeline narrative. The majority’s key takeaway is that, under plain-error review, relief depends on demonstrated prejudice—specifically, a reasonable probability of a lower sentence absent the mistake—often framed by whether the error “loomed large” or was central to the sentencing rationale. The dissent highlights the countervailing concern: even seemingly modest factual inaccuracies can become decisive if they are treated as aggravating anchors for the sentence. Together, the opinions underscore the real-world importance of contemporaneous objections to factual characterizations at sentencing.