§ 3553(a)(6) Sentencing-Disparity Claims Require Comparator Evidence to Rebut the Presumption of Reasonableness for Within-Guidelines Sentences

1. Introduction

In United States v. Pantoja-Hernandez (consolidated with the supervised-release revocation appeal under the same defendant’s alias), the Tenth Circuit reviewed the substantive reasonableness of two within-Guidelines sentences imposed by the District of New Mexico: (i) a 24-month prison term for illegal reentry under 8 U.S.C. § 1326(a)(1), (a)(2), (b)(1), and (ii) an 18-month prison term for violating supervised release, structured as 14 months concurrent and 4 months consecutive, for a total of 28 months.

The key issue on appeal was whether the total punishment was substantively unreasonable, primarily through the lens of 18 U.S.C. § 3553(a)(6) (avoiding unwarranted sentencing disparities among similarly situated defendants). The defendant argued his Criminal History Category VI overstated the seriousness of his nonviolent record and effectively compared him to “dangerous” offenders.

2. Summary of the Opinion

The Tenth Circuit affirmed. Because both sentences were within correctly calculated Guidelines ranges, they were presumptively reasonable. The defendant failed to rebut that presumption because he offered no statistics, cases, or other evidence establishing an actual disparity between his sentences and those imposed on similarly situated defendants. The court also declined to entertain an argument framed as substantive unreasonableness that, in substance, challenged the district court’s alleged failure to discuss § 3553(a)(6) explicitly—characterizing it as a procedural claim not properly raised.

3. Analysis

3.1. Precedents Cited

  • Gall v. United States, 552 U.S. 38 (2007)
    • Role in the opinion: Supplies the overarching appellate standard: all sentences—inside or outside the Guidelines—are reviewed for substantive reasonableness under a deferential abuse-of-discretion standard.
    • Disparity principle: If the district court correctly calculates and reviews the Guidelines range, it “necessarily” gives significant weight to avoiding unwarranted disparities, because the Guidelines are designed to reduce nationwide disparity.
  • United States v. Adams, 751 F.3d 1175 (10th Cir. 2014)
    • Role: Defines substantive reasonableness as whether the sentence length is reasonable in light of the § 3553(a) factors.
  • United States v. McBride, 633 F.3d 1229 (10th Cir. 2011)
    • Role: Confirms the same substantive-reasonableness framework applies to revocation of supervised release sentences.
  • United States v. Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014)
    • Role: Provides the Tenth Circuit’s formulation of abuse of discretion (“arbitrary, capricious, whimsical, or manifestly unreasonable”).
  • United States v. Verdin-Garcia, 516 F.3d 884 (10th Cir. 2008)
    • Role: Establishes that a within-Guidelines sentence is presumed reasonable on appeal and places a “hefty” burden on the appellant to rebut that presumption.
  • United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015)
    • Role: Connects the Guidelines to § 3553(a)(6), reasoning that because the Guidelines aim to eliminate nationwide disparity, a within-Guidelines sentence “necessarily” complies with § 3553(a)(6) absent a concrete showing to the contrary.
  • United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025) (McHugh, J., concurring)
    • Role: Used to rebut the defendant’s premise that Criminal History Category VI is reserved for violent offenders; instead, the category aggregates defendants with similar point totals reflecting similar volumes of offending and custody exposure, violent or not.
  • United States v. Doty, 150 F.4th 1351 (10th Cir. 2025)
    • Role: Supplies a decisive evidentiary principle: the district court “couldn't abuse its discretion by failing to consider facts not presented.” This directly undercuts a disparity argument offered without comparator support.
  • United States v. Gross, 44 F.4th 1298 (10th Cir. 2022)
    • Role: Distinguishes procedural error (failure to consider relevant factors) from substantive error (a sentence that does not fairly reflect those factors). The panel used this to classify the “failure to explicitly discuss disparities” claim as procedural and thus outside the appeal’s framing.
  • United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007)
    • Role: Confirms that for within-Guidelines sentences, a district court is not required to provide a factor-by-factor § 3553(a) discussion.
  • United States v. Zamora-Solorzano, 528 F.3d 1247 (10th Cir. 2008)
    • Role: Reinforces deference to the district court’s weighing of § 3553(a) factors; appellate courts do not re-balance mitigation versus deterrence/public safety absent a true abuse of discretion.

3.2. Legal Reasoning

  1. Correct Guidelines calculation triggered the presumption of reasonableness. The defendant did not dispute the advisory ranges (24–30 months for illegal reentry; 18–24 months for revocation), so both within-range sentences began on appeal as presumptively reasonable under United States v. Verdin-Garcia.
  2. § 3553(a)(6) arguments require proof of “unwarranted” disparity among “similar” defendants. The defendant asserted he was unlike others in Category VI due to nonviolence, but he presented no evidence (statistics, comparator cases, or similarly situated cohorts) showing his sentence was meaningfully higher than comparable defendants’ sentences. Applying United States v. Doty, the panel held the district court could not have abused its discretion by not considering disparity facts never presented.
  3. The Guidelines themselves are treated as a primary anti-disparity mechanism. Relying on Gall v. United States and United States v. Franklin, the court reasoned that correct reliance on the Guidelines “necessarily” accounts for § 3553(a)(6) in the typical case—making a bare, unsupported disparity claim especially hard to sustain.
  4. Criminal History Category VI is not “for violent offenders only.” The court rejected the defendant’s categorical framing, emphasizing (with support from United States v. Cortez) that Category VI is a point-driven classification capturing repeated offending and custody exposure, not a violence-only designation.
  5. Attempts to repackage procedural complaints as substantive ones will be policed. The claim that the district court failed to “explicitly” discuss disparities was treated as a procedural argument under United States v. Gross. Even if considered, United States v. Ruiz-Terrazas makes clear that a detailed § 3553(a) discussion is not required for within-Guidelines sentences.
  6. Party recommendations do not bind the court. Even though both parties requested lower or more favorable structuring (notably, concurrency), the panel reiterated—via Gall— that sentencing is the judge’s discretionary function, and United States v. Zamora-Solorzano requires appellate deference to how the district court weighed deterrence, public protection, and mitigation.

3.3. Impact

Although labeled an “Order and Judgment” and expressly “not binding precedent” (outside law of the case, res judicata, and collateral estoppel), the decision is a clear, practical roadmap for future Tenth Circuit sentencing appeals—particularly illegal reentry and supervised-release cases:

  • Evidentiary burden for disparity claims: A defendant pressing a § 3553(a)(6) disparity argument must come prepared with comparator data (Sentencing Commission statistics, district-level patterns, or analogous cases). Unsupported assertions that one is unlike other defendants in the same criminal history category are unlikely to rebut the within-Guidelines presumption.
  • Strategic clarity in appellate framing: Appellants must distinctly raise procedural issues (e.g., inadequate explanation) rather than embedding them in a substantive-reasonableness label.
  • Reinforcement of Guidelines centrality: The opinion strengthens the practical reality that, on appeal, a correctly calculated within-Guidelines sentence is extremely difficult to overturn absent concrete, record-based showings.
  • Revocation sentences treated similarly: By applying the same substantive reasonableness lens to revocation, the decision underscores that defendants should build disparity and mitigation records for revocation proceedings with the same care as for the new offense.

4. Complex Concepts Simplified

  • Substantive vs. procedural reasonableness:
    • Procedural asks: Did the court follow the right steps (correct range, consider factors, explain enough)?
    • Substantive asks: Even if the steps were right, is the final length of the sentence unreasonable given the factors?
  • § 3553(a)(6) “unwarranted disparities”: The law does not forbid all differences in sentences—only those that are unjustified among defendants who are genuinely comparable in record and conduct.
  • Presumption of reasonableness (within-Guidelines): If the sentence falls inside the advisory range, the appellate court starts from the position that the sentence is reasonable; the defendant must affirmatively show why it is not.
  • Criminal History Category VI: The highest Guidelines category based on accumulated “criminal history points.” It is not limited to violent offenders; repeated nonviolent offending can place a defendant in Category VI.
  • Concurrent vs. consecutive time: Concurrent terms overlap; consecutive terms stack. Here, the judge made most of the revocation term overlap with the new-offense term, but added 4 months on top.

5. Conclusion

United States v. Pantoja-Hernandez affirms that within-Guidelines sentences for illegal reentry and supervised-release violations are strongly insulated on appeal by the presumption of reasonableness. Most importantly, it illustrates a concrete rule of appellate practice: a defendant invoking § 3553(a)(6) must provide comparator evidence of unwarranted disparity; otherwise, the district court cannot be faulted for failing to address a disparity claim built on facts never presented. The decision also reinforces doctrinal boundaries between procedural and substantive review and reiterates the broad discretion sentencing judges retain—even when both parties recommend a lower sentence.