Sixth Circuit Reaffirms Nonreviewability of §4A1.3 Downward-Departure Denials and Upholds Within-Guidelines Illegal-Reentry Sentence

Introduction

This commentary examines the Sixth Circuit’s unpublished decision in United States v. Brayan Brook-Escalante (No. 24-5156, Dec. 3, 2024), authored by Judge Nalbandian and joined by Judges Boggs and Gibbons. The case concerns a defendant’s challenge to a within-Guidelines sentence imposed after a guilty plea to illegal reentry by a previously deported felon under 8 U.S.C. § 1326(a).

The appeal presented two core issues:

Whether the district court erred by declining to grant a downward departure under U.S.S.G. § 4A1.3(b)(1) based on the argument that the criminal-history category substantially overrepresented the seriousness of the defendant’s criminal record.
Whether the sentence was substantively unreasonable because the district court purportedly failed to address non-frivolous mitigation arguments, including those tied to the defendant’s personal circumstances and repeated reentries.

The panel affirmed, emphasizing longstanding Sixth Circuit principles: denials of downward departures under § 4A1.3 are generally unreviewable absent a misapprehension of authority, and within-Guidelines sentences carry a strong presumption of reasonableness. The court also concluded the district judge adequately considered and implicitly rejected the defense mitigation arguments without needing to recite the § 3553(a) factors formulaically.

Summary of the Opinion

Brayan Brook-Escalante, a Honduran national deported multiple times, pleaded guilty to illegal reentry. At sentencing, the district court calculated a Guidelines range of 21–27 months based on a criminal-history category V and imposed a mid-range sentence of 24 months, along with a three-year term of supervised release. The court weighed the seriousness of repeated illegal reentries, the need to protect border integrity, and the defendant’s commission of other offenses while in the United States, while also acknowledging mitigating considerations such as flight from gang violence and a desire to care for his ill mother.

On appeal, Brook-Escalante argued the district court should have granted a downward departure because his criminal-history category overrepresented the seriousness of his record and that the court failed to respond to his non-frivolous arguments, rendering the sentence substantively unreasonable. The Sixth Circuit rejected both points:

Refusal to depart under § 4A1.3(b)(1) is not reviewable unless the court misunderstood its authority to depart. No such misunderstanding was alleged.
The district court’s explanation sufficed under Rita v. United States; it addressed the defense’s arguments in substance, explicitly recognized mitigating facts, and tied the sentence to § 3553(a) rationales of deterrence, respect for the law, and just punishment. The within-Guidelines sentence therefore remained presumptively reasonable and was affirmed.

Analysis

Precedents Cited

United States v. Gates, 48 F.4th 463, 471–72 (6th Cir. 2022) — Clarifies the “subtle” but significant distinction between a Guidelines “departure” and a statutory “variance.” The court used Gates to construe Brook-Escalante’s argument, which invoked § 4A1.3(b)(1), as seeking a departure rather than a variance. That framing matters because appellate review standards differ.
United States v. Reed, 72 F.4th 174, 187 (6th Cir. 2023) — Reiterates abuse-of-discretion review for substantive reasonableness challenges, the standard the panel applied.
United States v. Cunningham, 669 F.3d 723, 733 (6th Cir. 2012) — Establishes that within-Guidelines sentences carry a presumption of reasonableness, which defendants face a “heavy burden” to overcome. The panel invoked this presumption.
United States v. Clark, 385 F.3d 609, 623 (6th Cir. 2004); United States v. Burns, 298 F.3d 523, 546 (6th Cir. 2002); United States v. Pickett, 941 F.2d 411, 417–18 (6th Cir. 1991) — Longstanding Sixth Circuit authority that a district court’s discretionary refusal to depart downward is generally unreviewable on appeal unless the court believed it lacked authority to depart. The panel relied on this line to deem the departure denial unreviewable.
United States v. Jones, 489 F.3d 243, 251 (6th Cir. 2007) — Requires sentencing courts to demonstrate consideration of non-frivolous arguments and, where pertinent, to explain the basis for rejecting them. The panel concluded the district court satisfied Jones.
United States v. Jeross, 521 F.3d 562, 582–83 (6th Cir. 2008) — Confirms that a court need not “recite” or perform a “ritual incantation” of the § 3553(a) factors; a reasoned explanation that shows consideration is enough.
Rita v. United States, 551 U.S. 338, 356 (2007) — The Supreme Court’s benchmark for sufficiency of sentencing explanations: enough to satisfy a reviewing court that the judge considered the parties’ arguments and had a reasoned basis for exercising discretion. The Sixth Circuit applied this standard in assessing the adequacy of the district court’s explanation.
United States v. Pyles, 904 F.3d 422, 426 (6th Cir. 2018) — Appellate courts have “no warrant to reweigh the § 3553(a) factors” on substantive review, a principle the panel invoked in declining to re-balance mitigation against aggravation.

Legal Reasoning

The panel’s reasoning proceeds in two steps that effectively foreclose relief under the standards applicable in the Sixth Circuit.

1) Departure vs. variance—and why the label matters.

Although the briefing at times mixed the terms “variance” and “departure,” the court, citing Gates, treated the argument as a request for a departure under U.S.S.G. § 4A1.3(b)(1), not a variance under § 3553(a). This distinction is dispositive for reviewability. Under Clark, Burns, and Pickett, a discretionary refusal to grant a downward departure is not reviewable unless the record indicates the judge misunderstood his authority to depart. Brook-Escalante did not contend that the district court believed it lacked such authority. Consequently, the Sixth Circuit treated the departure denial as unreviewable and declined to engage the merits of whether category V overstated his criminal history.

2) Adequacy of the district court’s explanation and substantive reasonableness.

Turning to the broader attack on substantive reasonableness, the panel applied the well-established presumption of reasonableness for within-Guidelines sentences (Cunningham) and the deferential abuse-of-discretion standard (Reed). The court then assessed whether the district judge adequately responded to non-frivolous mitigation arguments under Jones and Rita.

The record showed the judge:

Recognized the mitigating context—flight from Honduran gang violence, the desire to care for an ill mother, and the hope for better opportunities—explicitly rejecting the government’s claim that there were “absolutely no mitigating factors.”
Explained that repeated illegal reentries, coupled with other offenses while present in the United States, warranted a “significant period of incarceration” to promote respect for the law and deter both the defendant and others.
Linked the sentence to core § 3553(a) aims—seriousness of the offense, deterrence, respect for law—without needing to recite the factors in rote fashion (Jeross).

The panel quoted the district court’s rationale:

“[W]hen you have been here, you've taken advantage of our community by engaging in criminal conduct.... And that's why a significant period of incarceration will be required. It's the way we promote respect for the law. It's the way . . . that we deter others from making the same choice that you made.” (Sentencing Tr. at 16.)

Against that backdrop, and given the within-Guidelines range (21–27 months) and sentence (24 months), the panel concluded the defendant had not overcome the presumption of reasonableness. Finally, invoking Pyles, the court emphasized it would not reweigh the § 3553(a) factors de novo on appeal.

Impact

While “not recommended for publication” and therefore not precedential, the opinion reinforces several practical and doctrinal points that will influence sentencing advocacy and review in the Sixth Circuit:

Preserving appellate review requires careful framing. Defense counsel seeking reduced sentences on grounds that criminal history overstates culpability face a fork in the road. A request under § 4A1.3(b)(1) is a departure request and, if denied, is generally unreviewable unless the court misunderstood its authority. By contrast, a variance request under § 3553(a) is fully reviewable for reasonableness. Precision matters; mixing terms can inadvertently limit the scope of appellate relief.
Within-Guidelines sentences remain hard to disturb. The presumption of reasonableness remains potent. To overcome it, a defendant must show more than disagreement with the district court’s balancing; he must show arbitrariness, reliance on impermissible factors, failure to consider pertinent § 3553(a) factors, or an unreasonable weighting of factors. Brook-Escalante’s mitigation did not meet that threshold.
“No magic words” are required to reject mitigation. Under Rita and Jeross, district courts need not deliver formulaic speeches. A targeted, record-grounded explanation that shows the court heard and weighed the arguments will suffice. This continues to set a high bar for defendants hoping to show inadequate explanation on appeal.
Illegal-reentry cases and “overrepresentation” arguments. Defendants who argue that criminal-history points derived from prior illegal reentries amount to “double punishment” are unlikely to gain traction via § 4A1.3 in the Sixth Circuit on appeal, because denials are usually unreviewable. Counsel may instead foreground these points as § 3553(a) variance arguments to preserve reasonableness review of the overall sentence.
Deference to district court fact-weighing. The opinion underscores the appellate court’s reluctance to reweigh facts and resentencing considerations. The district court’s integrated discussion of deterrence, respect for law, seriousness of repeated reentry, and recognition of personal mitigation was enough to survive review.

Complex Concepts Simplified

Departure vs. Variance:
- A departure is an adjustment under the Guidelines themselves (here, U.S.S.G. § 4A1.3(b)(1), for overstated criminal history). Denials of departures are usually not appealable unless the judge thought he lacked authority to depart.
- A variance is a sentence outside the Guidelines based on statutory factors in 18 U.S.C. § 3553(a). Variances are reviewed for reasonableness on appeal.
Substantive vs. Procedural Reasonableness:
- Procedural reasonableness focuses on the method: correct Guidelines calculation, consideration of § 3553(a) factors, and adequate explanation.
- Substantive reasonableness examines the outcome: whether the sentence is too long or short in light of the statutory factors and the record. Brook-Escalante framed his appeal as substantive, though he also argued the judge did not address non-frivolous arguments; the panel analyzed the sufficiency of the explanation within this framework.
Presumption of Reasonableness:
- When a sentence falls within the correctly calculated Guidelines range, the Sixth Circuit presumes it is reasonable. The defendant can rebut the presumption, but bears a “heavy burden.”
U.S.S.G. § 4A1.3(b)(1) (Overrepresentation):
- Allows a court to decrease the criminal-history category if reliable information indicates it substantially overstates the seriousness of the defendant’s past conduct or the likelihood of recidivism.
- Appellate review of a refusal to depart under this provision is limited to cases where the district court thought it had no authority to depart.
Rita Adequacy Standard:
- A district court need not respond to every argument in detail, but must say enough to demonstrate it considered the parties’ positions and has a reasoned basis for the sentence imposed.

Conclusion

United States v. Brook-Escalante is a clear reaffirmation of two entrenched sentencing doctrines in the Sixth Circuit: (1) refusals to grant downward departures under § 4A1.3(b)(1) are not reviewable on appeal absent a misapprehension of authority; and (2) within-Guidelines sentences are presumptively reasonable and will be upheld where the district court offers a coherent, record-based explanation tethered to § 3553(a), even if it does not explicitly reject each mitigation argument in turn.

For practitioners, the opinion offers practical guidance. If the theory is that the Guidelines overstate culpability or recidivism risk, counsel should consider framing the request as a § 3553(a) variance—in addition to or instead of a § 4A1.3 departure—to ensure the claim is reviewable. And for district judges, the decision confirms that a non-formulaic explanation that squarely links the sentence to deterrence, respect for law, seriousness of the offense, and the defendant’s history and characteristics will typically suffice under Rita, particularly for within-Guidelines sentences.

Although unpublished and non-binding, the decision will likely be persuasive authority within the circuit, especially in illegal-reentry cases where defendants frequently argue that repeated § 1326 offenses inflate criminal-history scores. The Sixth Circuit’s deferential approach underscores that the path to a reduced sentence in such cases will often run through carefully developed variance arguments and robust, individualized mitigation at the district court level.