Recency of Removal and Alcohol-Fueled Domestic Violence Can Render § 1326 Guidelines “Insufficient” and Support an Upward Variance

Case: United States v. Gumersindo Gonzalez-Montoya (11th Cir. Jan. 21, 2026) (unpublished)
Issue on appeal: Substantive reasonableness of a 20-month upward-variance sentence for illegal reentry under 8 U.S.C. § 1326(a)

I. Introduction

Gumersindo Gonzalez-Montoya, a Mexican national, pled guilty (without a plea agreement) to unlawfully reentering the United States after deportation, in violation of 8 U.S.C. § 1326(a). The district court calculated an advisory Sentencing Guidelines range of 6 to 12 months (offense level 6; criminal history category IV) and imposed a 20-month term of imprisonment—an upward variance—followed by supervised release with conditions including not reentering without permission and abstaining from alcohol if present in the United States.

The appeal centered on whether that above-Guidelines sentence was substantively unreasonable. Gonzalez-Montoya argued the district court (i) failed to give sufficient weight to the Guidelines, allegedly treating the statutory maximum as the benchmark, and (ii) overemphasized aggravating facts (alcohol-related misdemeanor history and the domestic-violence episode) while overlooking mitigating facts (work history, no prior felonies, limited immigration history).

II. Summary of the Opinion

The Eleventh Circuit affirmed. Applying deferential abuse-of-discretion review, the panel held that Gonzalez-Montoya did not carry his burden to show substantive unreasonableness. The district court:

Considered the Guidelines range and expressly found it “insufficient,”
Explained its variance by reference to § 3553(a) goals—promoting respect for the law, deterrence, punishment, and protection of the public—based on (a) the rapid return after removal and (b) alcohol-fueled violence and related misconduct, and
Credited acceptance of responsibility by lowering the sentence from the statutory maximum (24 months) to 20 months after defense objection.

The court also reiterated that district courts may assign different weights to different § 3553(a) factors and are not required to discuss mitigating evidence at length.

III. Analysis

A. Precedents Cited

Case (as cited in the Opinion)	Rule/Principle Used	How It Shaped the Decision
United States v. Trailer, 827 F.3d 933 (11th Cir. 2016)	Articulates the Eleventh Circuit’s “two-step process” for sentencing review: procedural reasonableness first, then substantive reasonableness.	Provided the framework. Because Gonzalez-Montoya raised no procedural challenge, the panel moved directly to substantive reasonableness while grounding its methodology in Trailer.
United States v. Butler, 39 F.4th 1349 (11th Cir. 2022)	Defines substantive reasonableness review (“ballpark of permissible outcomes”), abuse-of-discretion standard, and three ways a court can impose a substantively unreasonable sentence; also explains that upward variances may be warranted where Guidelines are insufficient (e.g., criminal history or conduct tied to deterrence/public protection).	This was the opinion’s primary substantive lens. The panel repeatedly used Butler to (i) reject “reweighing” arguments, (ii) validate the district court’s focus on deterrence and respect for law, and (iii) uphold the upward variance as within permissible outcomes.
United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015) (Opinion of E. Carnes, J.)	Emphasizes district court discretion in weighing § 3553(a) factors and rejects “across-the-board” prescriptions about deference to the Guidelines.	Supported the conclusion that the district court could give heightened weight to recidivism, alcohol abuse, and violence—even if the Guidelines accounted for some criminal history.
United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008)	States the defendant bears the burden of proving unreasonableness; notes courts “ordinarily expect” within-Guidelines sentences to be reasonable.	Used to allocate the burden to the appellant and to contrast the “ordinary” expectation for within-range sentences with the permissibility of variances when justified.
United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc)	Provides the abuse-of-discretion framework and cautions against appellate substitution of judgment; cited for weighting principles (via Rosales-Bruno) and for the “clear error of judgment” concept.	Reinforced deference to the sentencing judge and limited the appellate role to checking for unreasonable weighing rather than second-guessing.
United States v. Castaneda, 997 F.3d 1318 (11th Cir. 2021)	Reiterates expectation that within-Guidelines sentences are reasonable (without creating a presumption).	Helped situate the analysis within broader circuit doctrine about Guidelines as a benchmark, not a ceiling or floor.
United States v. Hayes, 762 F.3d 1300 (11th Cir. 2014)	Example where a sentence was found substantively unreasonable due to inadequate consideration of the Guidelines.	Served as a contrast case: the panel distinguished this appeal because the district court here explicitly noted the range and explained why it was insufficient.
United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008)	Another benchmark for when variance reasoning may fail; underscores importance of Guidelines consideration.	Again used by contrast—here the district court’s stated rationale and record-based explanation avoided the deficiencies highlighted in Pugh.
United States v. Hunt, 459 F.3d 1180 (11th Cir. 2006)	Cited (through Rosales-Bruno) for rejecting rigid deference rules about the Guidelines.	Supported the proposition that the Guidelines are not controlling where § 3553(a) factors warrant variance.
United States v. Olson, 127 F.4th 1266 (11th Cir. 2025)	States district courts need not give all § 3553(a) factors equal weight.	Directly undercut Gonzalez-Montoya’s “the court should have weighed Guidelines/mitigation more” argument.
United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007)	Failure to discuss mitigating evidence generally does not mean it was ignored.	Supported affirmance despite the district court not discussing work history or immigration background “at length.”
United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009)	A court’s acknowledgment that it considered § 3553(a) and the parties’ arguments is typically enough.	Helped validate the sufficiency of the sentencing explanation and consideration of arguments.
United States v. Cortero-Roman, No. 22-13930, 2025 WL 1662612 (11th Cir. Jun. 12, 2025) (unpublished)	Remand where the district court did not sufficiently explain an extreme variance.	The panel distinguished it: Cortero-Roman involved an extraordinarily large variance and inadequate explanation; Gonzalez-Montoya’s variance was smaller and supported by a “clear and cogent” rationale.
United States v. Beaufils, 160 F.4th 1147 (11th Cir. 2025)	Reaffirms deference: a “range of choice” exists unless there is a “clear error of judgment.”	Reinforced that the appellate court would not reweigh facts where the sentence remained within permissible choices.
Rasbury v. IRS (In re Rasbury), 24 F.3d 159 (11th Cir. 1994)	Quoted (via Beaufils) for “range of choice” / “clear error of judgment” framing.	Provided a general articulation of deference used to justify affirmance under the abuse-of-discretion standard.

B. Legal Reasoning

1. The governing framework: substantive reasonableness under abuse-of-discretion

After noting the Trailer two-step approach, the panel proceeded directly to substantive reasonableness because only that was challenged. Under Butler and Irey, the question was not whether the panel would have imposed the same sentence, but whether the district court’s choice fell within the “ballpark of permissible outcomes” and did not reflect (i) neglect of a factor due significant weight, (ii) reliance on an irrelevant factor, or (iii) a clear error of judgment in weighing factors.

2. The Guidelines as benchmark—considered, but not controlling

Gonzalez-Montoya’s lead argument was that the district court effectively displaced the Guidelines with the statutory maximum. The panel rejected that characterization on the record: the district court expressly adopted the PSI, stated the total offense level and criminal history category, and concluded “These guidelines are insufficient.”

The panel’s reasoning reflects a familiar Eleventh Circuit principle: the Guidelines must be considered, but the judge retains discretion to determine they do not adequately satisfy § 3553(a) purposes. This principle is anchored in Butler, Rosales-Bruno, Hunt, and Olson.

3. Why the variance was justified on these facts

The opinion highlights two aggravating themes that, in the panel’s view, rationally supported the upward variance:

Rapid recidivism in immigration noncompliance: the district court emphasized that Gonzalez-Montoya returned “barely two months” after his removal, treating the timing as evidence of heightened disrespect for the law and a need for greater deterrence.
Alcohol-driven violence and misconduct: the sentencing judge focused on repeated alcohol-related offenses and the domestic battery incident (including striking the victim while she drove and grabbing the steering wheel), concluding a stronger sanction was needed to protect the public and promote respect for the law.

A key doctrinal move in the panel’s explanation is its statement that while the Guidelines reflected prior convictions, they did not “capture” the immediacy of Gonzalez-Montoya’s post-removal return—treated as highly relevant to deterrence and respect-for-law objectives under 18 U.S.C. § 3553(a)(2)(A)–(B). This is consistent with Butler, which expressly permits variances where a Guidelines range is “insufficient” in light of criminal history or other conduct tied to deterrence/public protection.

4. Treatment of mitigating evidence and explanation adequacy

The panel held it was not reversible error that the district court did not discuss mitigation “at length.” Under Amedeo and Sarras (as invoked through Butler), a sentencing court’s acknowledgment of having considered § 3553(a) and the parties’ arguments is usually enough; silence on specific mitigating points typically does not prove the court ignored them.

5. Acceptance of responsibility as a reasonableness “safety valve”

An important procedural moment—used substantively to support reasonableness—was the district court’s response to the defense objection that a statutory maximum sentence would fail to credit acceptance of responsibility. The judge agreed and reduced the sentence from 24 months to 20 months. The panel treated this as evidence of balanced sentencing rather than a reflexive maximum-penalty approach.

C. Impact

Practical rule emerging from the opinion: In § 1326(a) cases, the Eleventh Circuit will generally uphold a moderate upward variance where the record shows (i) explicit consideration of the Guidelines, (ii) a reasoned finding that the range is “insufficient,” and (iii) a variance justified by concrete § 3553(a) concerns such as rapid post-removal return, repeated alcohol-driven criminal behavior, and violence indicating risk to the public.

Recency of removal matters: Even where the Guidelines account for criminal history, a judge may treat a swift return after removal as an aggravating indicator of recidivism and disrespect for law.
Variance litigation will turn on record explanation, not labels: By distinguishing United States v. Cortero-Roman, the panel signals that the more “extreme” the variance, the more robust the explanation must be. Here, the variance was upheld because the sentencing judge articulated specific, record-based reasons.
Mitigation arguments must clear a high appellate bar: The decision reinforces that appellate courts will not reweigh mitigation where the sentencing court’s rationale fits within § 3553(a) and is coherently explained.
Guidelines remain a benchmark, not a cap: The opinion reiterates that the Guidelines do not bind the court where deterrence, public protection, and respect-for-law rationales support a higher sentence.

IV. Complex Concepts Simplified

Guidelines range: A recommended sentencing window calculated from offense severity and criminal history. It is advisory, not mandatory.
Upward variance: A sentence above the advisory Guidelines range based on the judge’s evaluation of the 18 U.S.C. § 3553(a) factors.
Statutory maximum: The highest sentence Congress allows for the offense (here, 2 years). A judge may sentence up to this limit, but still must justify the sentence under § 3553(a).
Procedural vs. substantive reasonableness:
- Procedural asks whether the judge followed the correct steps (correct range, considered factors, explained sentence).
- Substantive asks whether the final length of the sentence is reasonable given the whole record and § 3553(a).
Abuse-of-discretion review: A deferential standard. The appellate court affirms unless the sentencing choice is outside the permissible range of outcomes or reflects a clear error in weighing relevant considerations.
Acceptance of responsibility: A defendant who promptly admits guilt typically receives a lower Guidelines offense level; courts may also reflect that acceptance when deciding the final sentence.

V. Conclusion

United States v. Gumersindo Gonzalez-Montoya reinforces a pragmatic Eleventh Circuit rule of deference in sentencing: when a district court acknowledges the advisory Guidelines, ties an upward variance to concrete § 3553(a) purposes (deterrence, respect for law, protection of the public), and explains why the Guidelines are “insufficient” on the particular facts—here, rapid post-removal reentry coupled with alcohol-fueled domestic violence and repeated alcohol-related offenses—the resulting sentence will generally be affirmed as substantively reasonable.

The decision’s broader significance lies less in doctrinal novelty than in its application: it underscores that timing of reentry and public-safety-linked conduct can legitimately drive above-Guidelines sentences in illegal reentry cases, and that appellate courts will not reweigh mitigation absent a clear error of judgment.