Major Upward Variances in Illegal-Reentry Sentencing May Rest on Recency of Serious Prior Crime and Rapid Return, Notwithstanding JSIN Averages

I. Introduction

In United States v. Diaz-Hernandez (10th Cir. May 6, 2026) (Order and Judgment), the Tenth Circuit affirmed a 42-month sentence for unlawful reentry under 8 U.S.C. § 1326(a) and (b), despite an advisory Guidelines range of 15–21 months. The defendant, Jardel Humberto Diaz-Hernandez, a Honduran national, had been removed multiple times and reentered again only four months after removal following a Texas conviction for sexual abuse-related conduct.

The appeal presented a single preserved question: whether the length of the above-Guidelines sentence was substantively unreasonable under 18 U.S.C. § 3553(a). The panel also addressed (largely to reject) attempts to reframe unpreserved sentencing complaints as substantive-review arguments, and it clarified the limited role of JSIN (Sentencing Commission statistical) comparisons when a sentencing court provides an individualized explanation.

II. Summary of the Opinion

The court affirmed. Applying deferential abuse-of-discretion review, it held that the district court offered a sufficiently compelling, fact-specific justification for a major upward variance based chiefly on (1) the defendant’s recent conviction involving sexual abuse of a child and (2) the speed with which he unlawfully returned after removal.

The panel rejected the defendant’s reliance on JSIN statistics showing a 12-month average/median for comparable Guideline inputs, agreeing with the district court that those aggregate comparisons did not account for individualized conduct and therefore did not demonstrate an unwarranted disparity on this record.

III. Analysis

A. Precedents Cited

  • United States v. Vazquez-Garcia, 130 F.4th 891 (10th Cir. 2025)
    The opinion’s principal Tenth Circuit anchor. It supplied: (i) the two-step procedural/substantive framework; (ii) the notion that district courts may vary in “heartland” cases; (iii) the proposition that the recency of a prior conviction and the speed of return are relevant to multiple § 3553(a) factors in illegal-reentry sentencing; and (iv) the “major upward variance” characterization requiring a “more significant justification.”
  • United States v. Jackson, 82 F.4th 943 (10th Cir. 2023)
    Quoted (via Vazquez-Garcia) for the operative definition of substantive reasonableness—whether the sentence length is reasonable “given all the circumstances” in light of § 3553(a).
  • Gall v. United States, 552 U.S. 38 (2007)
    The Supreme Court’s central sentencing-review precedent. It supplied: (i) deferential abuse-of-discretion review for all sentences; (ii) the requirement that larger variances require more compelling justification; (iii) the list of “significant procedural error[s]”; (iv) the prohibition on presuming unreasonableness for outside-Guidelines sentences; and (v) caution against rigid mathematical variance formulas.
  • United States v. Lente, 759 F.3d 1149 (10th Cir. 2014)
    Reinforced Gall’s abuse-of-discretion framework and the “major variance needs more justification” principle; also used to reject percentage-based approaches to reasonableness.
  • United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)
    Provided the “holistic inquiry” formulation: a sentencing court acts properly when it cites specific, articulable facts supporting the variance and avoids impermissible methodology or out-of-bounds factual reliance.
  • United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025)
    Important as a contrast case. There, an upward variance was reversed due to inadequate explanation and incorrect factual premises. Here, the panel distinguished it: Diaz-Hernandez had an individualized explanation and no comparable reliance on incorrect facts. Guevara-Lopez also appears procedurally (the Anders-withdrawal motion was denied without prejudice after that decision).
  • United States v. McCrary, 43 F.4th 1239 (10th Cir. 2022) (quoting United States v. Blair, 933 F.3d 1271 (10th Cir. 2019))
    Supplied the appellate restraint principle: the court does not reweigh § 3553(a) factors and asks only whether the sentence lies within “rationally available choices.”
  • United States v. Sells, 541 F.3d 1227 (10th Cir. 2008)
    Quoted for the “not arbitrary, capricious, or manifestly unreasonable” deference formula.
  • United States v. Peña, 963 F.3d 1016 (10th Cir. 2020)
    Cited to emphasize appellate review is not a “rubber stamp,” even under deference.
  • United States v. Lucero, 130 F.4th 877 (10th Cir. 2025)
    Used to reaffirm that even substantial variances may be upheld when § 3553(a) is properly weighed and valid reasons are offered; also cited later for the waiver rule regarding arguments first raised in a reply brief (though the citation line in the opinion contains a minor internal inconsistency in reporter/page formatting).
  • United States v. Gross, 44 F.4th 1298 (10th Cir. 2022) (quoting United States v. Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014))
    Provided the procedural/substantive distinction: procedural error is failure to consider relevant factors; substantive error is a sentence that does not fairly reflect those factors.
  • United States v. Zamora-Guerra, 169 F.4th 1026 (10th Cir. 2026)
    The opinion’s key authority on JSIN: national statistics may heighten concern where the district court fails to explain, but where the court offers an individualized assessment, “bare national statistics” that are not personalized do not carry the day.
  • United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019)
    Cited for the rule that unpreserved issues not argued under plain-error review are typically not reviewed at all.
  • United States v. Pinson, 542 F.3d 822 (10th Cir. 2008)
    Cited for the proposition that use of an improper factor is reviewed as procedural unreasonableness (supporting the court’s treatment of certain defense points as unpreserved procedural claims).
  • Crosby, 119 F.4th at 1248
    Cited for the observation that procedural vs substantive lines can be “murky” when focusing on a district court’s explanation of § 3553(a); the panel concluded there was no murkiness here because the district court explicitly weighed each factor.
  • United States v. Chavez, 723 F.3d 1226 (10th Cir. 2013)
    Quoted (via Lucero) for the requirement of an “individualized assessment” of how § 3553(a) factors apply to the particular defendant.
  • United States v. Clay, 148 F.4th 1181 (10th Cir. 2025), cert. denied, 2026 WL 642800 (Mar. 9, 2026)
    Cited for the rule that issues raised for the first time in a reply brief are not considered.
  • Anders v. California, 386 U.S. 738 (1967)
    Mentioned in the procedural history: appellate counsel initially sought to withdraw; after Guevara-Lopez, the court denied without prejudice and counsel filed a merits brief.
  • United States v. Guinn, 89 F.4th 838 (10th Cir. 2023)
    Cited for judicial notice of state court records regarding prior convictions, relevant to clarifying the nature of the Texas plea.

B. Legal Reasoning

1. Framing the issue as substantive reasonableness only.
The panel emphasized the appeal challenged only substantive reasonableness. It treated several defense themes—adequacy of explanation, “template/script” sentencing, use of convictions already counted in the Guidelines, and reliance on PSR-described conduct—as procedural complaints. Because they were not preserved below (and/or were not properly presented under plain-error standards), they did not support reversal.

2. Deferential review and “major variance” discipline.
The court accepted the defendant’s core premise that 42 months is a major upward variance from 15–21 months, thus requiring a “more significant justification.” It nevertheless found that justification present: the district court relied on specific, articulable facts tied to § 3553(a)—notably the seriousness/recency of the prior sexual-abuse conviction and the remarkably short time between removal and reentry.

3. Heartland arguments do not constrain variances.
To the extent the defense suggested the case was “mine-run” and therefore demanded a within-Guidelines sentence, the panel invoked United States v. Vazquez-Garcia to reiterate that even “heartland” cases may warrant variances under § 3553(a). It also clarified that “heartland” analysis is associated with departures, not variances.

4. JSIN statistics: permissible consideration, limited force.
The district court considered JSIN data but found it unpersuasive because it grouped defendants by offense level and criminal history category without capturing individualized underlying conduct. On appeal, the panel—relying on United States v. Zamora-Guerra— agreed: where the judge provides an individualized assessment and valid explanation, national averages that are not “personalized” do not establish an unwarranted disparity.

5. No reweighing of mitigation.
The defendant pointed to potentially mitigating facts (family needs, typicality of motives for return, removals long ago). The panel reiterated (via United States v. McCrary) that appellate courts do not reweigh the § 3553(a) balance; the question is only whether the district court’s balance was within the range of rational choices.

6. Percentage comparisons do not govern.
The defendant argued the variance was extreme when measured as a percentage of the Guidelines range or relative to the JSIN average. The panel rejected percentage-based heuristics, citing United States v. Lente and Gall v. United States.

C. Impact

Although designated “not binding precedent,” the decision consolidates several practical points likely to influence future illegal-reentry sentencings and appellate briefing in the Tenth Circuit:

  • Recency plus rapid reentry can justify major upward variances. The opinion treats the combination—especially when the prior conviction is serious and recent—as a legitimate, multi-factor § 3553(a) rationale (deterrence, protection of the public, respect for law, and history/characteristics).
  • JSIN comparisons are not dispositive. They matter most when the district court’s explanation is thin. When the sentencing judge explains why the defendant is atypical in ways the statistics do not capture, the statistics have limited appellate traction.
  • Procedural/substantive labeling affects preservation. The decision signals that litigants cannot reliably recast unpreserved procedural errors (explanation adequacy, improper-factor claims, individualized assessment) as substantive arguments on appeal.
  • Reply-brief issue raising is perilous. The court enforced waiver for a “template/script” theory raised only in the reply brief, reinforcing a strict sequencing discipline for appellate arguments.

IV. Complex Concepts Simplified

  • Guidelines “departure” vs “variance”: A departure is an adjustment authorized by the Guidelines’ own rules (historically linked to “heartland” analysis). A variance is a sentence outside the Guidelines range based on the judge’s application of the statutory § 3553(a) factors.
  • Procedural vs substantive reasonableness: Procedural issues concern the process (correct range calculation, considering factors, fact accuracy, adequate explanation). Substantive issues concern the ultimate length—whether it is reasonable in light of § 3553(a).
  • Abuse-of-discretion review: The appellate court does not decide what sentence it would impose. It asks whether the district court’s choice was within a range of reasonable options supported by facts and law.
  • JSIN statistics: Aggregate sentencing data from the U.S. Sentencing Commission. Useful as context, but often limited because they cannot encode defendant-specific aggravating/mitigating details.
  • Preservation, waiver, and plain error: Many sentencing complaints must be raised in the district court. If not preserved, an appellant generally must argue “plain error” on appeal; failing to do so can forfeit review entirely.

V. Conclusion

United States v. Diaz-Hernandez affirms that a major upward variance in an illegal-reentry case can be substantively reasonable when the district court grounds the sentence in specific, individualized § 3553(a) facts—here, a serious and recent prior conviction and an exceptionally rapid return after removal—and explains why broad statistical comparators (JSIN averages) do not capture the defendant’s circumstances. The decision also serves as a cautionary guide to litigants: many “reasonableness” attacks are procedural in substance and must be preserved and presented correctly to obtain meaningful appellate review.