"Stale" Convictions, "Fresh" Conduct: Eleventh Circuit Affirms Upward Variance Based on Underrepresented Criminal History Without §4A1.3 Findings

"Stale" Convictions, "Fresh" Conduct: Eleventh Circuit Affirms Upward Variance Based on Underrepresented Criminal History Without §4A1.3 Findings

Introduction

This unpublished, per curiam decision from the Eleventh Circuit addresses a familiar but consequential tension in federal sentencing: when, and how, a district court may rely on a defendant’s criminal history to impose an above-Guidelines sentence in an illegal reentry case. In United States v. Tomas Sanchez Ramirez (No. 24-13198, Mar. 24, 2025), the panel affirmed a three-month upward variance from a 1–7 month advisory range, largely on the ground that the defendant’s long record of DUIs and batteries—though largely “zero-point” due to age—was “refreshed by his recent conduct” and underrepresented by the Guidelines calculation.

The opinion consolidates several Eleventh Circuit themes: (1) the broad discretion district courts enjoy to weigh history and characteristics under 18 U.S.C. § 3553(a); (2) the permissibility of considering “stale” convictions as part of the § 3553(a) analysis even when they receive no criminal history points; and (3) the distinction between an upward variance under § 3553(a) and an upward departure under U.S.S.G. § 4A1.3. The appellant argued the court over-relied on prior offenses and failed to justify the variance, but the Eleventh Circuit disagreed.

Summary of the Opinion

The district court calculated a total offense level of 6 (base 8 under § 2L1.2(a), minus 2 for acceptance) and a criminal history category II (two points from a 2022 Georgia DUI), yielding an advisory guideline range of 1–7 months. The court, however, imposed a 10-month sentence with three years of supervised release, explaining that:

  • Illegal reentry is serious, and the defendant’s pattern of DUI and battery offenses (mostly older) demonstrates “zero regard for the law.”
  • Short sentences had functioned as “processing time,” failing to deter the defendant, whom the court believed likely to reenter and reoffend.
  • Older, zero-point convictions were “refreshed by his recent conduct,” rendering the Guidelines range underrepresentative.

On appeal, the Eleventh Circuit affirmed. It held that:

  • The district court acted within its discretion to give substantial weight to the defendant’s history and characteristics—even where the Guidelines already capture some criminal history. See Rosales-Bruno; Tome.
  • The court did not ignore mitigation (e.g., a claimed sexual assault in state custody, a 12-year gap since most recent older convictions, family support motives); a judge need not address every mitigating argument. See Amedeo; McBride.
  • The explanation for a modest three-month variance was sufficient under Gall.
  • Because the court varied under § 3553(a) rather than “departed” under § 4A1.3, no § 4A1.3 findings were required. See Hall.

In a footnote, the panel also noted that the appeal was not moot notwithstanding the defendant’s apparent release or possible removal, because a three-year term of supervised release remained. See Orrega; Dawson.

Factual and Procedural Background

The record reflects that Mr. Sanchez Ramirez, a Mexican national, entered the United States in 1990, later faced formal removal in 2012, and reentered to support his youngest child. In 2022, while in Georgia, he incurred DUI and other traffic violations leading to probation and then revocation with a six-month custodial term. After an ICE detainer in April 2024 and federal custody in June 2024, he pleaded guilty to illegal reentry under 8 U.S.C. § 1326(a), (b)(1).

The Presentence Investigation Report set an advisory range of 1–7 months (offense level 6; criminal history category II). Although older convictions (2003–2010)—including multiple DUIs, battery, aggressive driving, and driving without a license—received no points under U.S.S.G. § 4A1.2(e)(3), the district court treated the cumulative history, “refreshed by his recent conduct,” as highly probative of recidivism and danger. Finding that a short sentence would again amount to mere “processing time,” the court imposed 10 months and three years of supervised release. The defense’s substantive reasonableness objection followed.

Analysis

Precedents Cited and Their Influence

  • Gall v. United States, 552 U.S. 38 (2007) – Establishes the deferential abuse-of-discretion standard for appellate review of sentencing and requires district courts to provide sufficient reasons for variances. Here, Gall frames the standard of review: the appellate court does not substitute its judgment for that of the sentencing judge; it asks whether the chosen sentence is within the range of reasonableness given the § 3553(a) factors and the explanation provided.
  • Kimbrough v. United States, 552 U.S. 85 (2007) – Confirms the Guidelines are advisory and underscores § 3553(a)’s “parsimony principle”: impose a sentence sufficient but not greater than necessary. The panel cites Kimbrough to reinforce that the sentencing court’s task is to calibrate a sentence tailored to statutory purposes, which can warrant a variance where the advisory range underrepresents risk or seriousness.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc) – Articulates the Eleventh Circuit’s standard for substantive reasonableness: reversal is warranted only if the appellate court is left with a “definite and firm conviction” that the district court committed a clear error of judgment in weighing § 3553(a). The panel relies on Irey to frame its limited role and to explain that a different sentence might be reasonable, but is not a basis for reversal.
  • United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015) – A cornerstone illegal reentry precedent emphasizing that the district court may give substantial weight to a defendant’s criminal history and background, even when such facts overlap with the Guidelines calculation. Rosales-Bruno supports the proposition that history-and-characteristics considerations can justify upward variances in § 1326 cases.
  • United States v. Tome, 611 F.3d 1371 (11th Cir. 2010) – Reaffirms that under 18 U.S.C. § 3661 a sentencing court may consider any information concerning the defendant’s background, character, and conduct in imposing sentence, including conduct not scored by the Guidelines. Tome bolsters the panel’s approval of the district court’s reliance on zero-point, older convictions as part of the § 3553(a) narrative.
  • United States v. Osorio-Moreno, 814 F.3d 1282 (11th Cir. 2016) – Confirms that the weight assigned to § 3553(a) factors rests with the district court, which can legitimately prioritize history and characteristics in crafting an appropriate sentence. The panel cites it to validate the judge’s emphasis on criminal history and risk.
  • United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007) – Holds that a sentencing judge need not explicitly address each mitigating argument; failure to mention a particular point does not mean it was ignored. The panel uses Amedeo to reject the claim that mitigation was overlooked.
  • United States v. McBride, 511 F.3d 1293 (11th Cir. 2007) – Teaches that a sentencing court need not recite every § 3553(a) factor or explain the precise weight given to each. The panel cites McBride to uphold the sufficiency of the court’s explanation for an upward variance.
  • United States v. Hall, 965 F.3d 1281 (11th Cir. 2020) – Clarifies the variance/departure distinction: once the court correctly calculates the Guidelines, it may vary under § 3553(a) without invoking or satisfying a specific departure provision like § 4A1.3. Hall defeats the appellant’s argument that formal § 4A1.3 findings were required.
  • United States v. Orrega, 363 F.3d 1093 (11th Cir. 2004), and Dawson v. Scott, 50 F.3d 884 (11th Cir. 1995) – Together, they support the proposition that an appeal is not moot when a defendant remains on supervised release or faces continuing collateral consequences. The panel cites these to confirm Article III jurisdiction despite apparent release from custody or removal.

Legal Reasoning

The panel’s reasoning proceeds in three steps.

  1. Deferential review and holistic § 3553(a) assessment. Applying Gall and Irey, the court views the district judge’s sentencing synthesis through a forgiving lens, scrutinizing whether the overall explanation and weighing of factors fell within a permissible range. The judge expressly discussed the nature of the offense, the defendant’s history and characteristics, deterrence, protection of the public, respect for law, and the advisory Guidelines. The record shows consideration—and rejection—of mitigation arguments advanced by the defense.
  2. Weight given to criminal history and the “refreshing” of stale convictions. The heart of the affirmance lies in the permissibility of turning to older, non-scored convictions when they illuminate a continuous pattern of risky criminal behavior, especially DUIs and violent conduct (battery). The panel ratifies the district court’s view that these older offenses were “refreshed by his recent conduct,” meaning the recent DUI/probation violations reanimated the probative value of the older DUIs and batteries for purposes of recidivism and danger-to-the-community assessments under § 3553(a)(2)(B)–(C).
  3. Variance, not departure; no § 4A1.3 findings required. The appellant argued that the court was obligated to make specific findings to “depart” for underrepresented criminal history under § 4A1.3(a). Relying on Hall, the panel holds that the district court imposed an upward variance, not a departure: it correctly calculated the range and then concluded that the § 3553(a) purposes were not met by a within-range sentence. As such, no § 4A1.3 protocol applied.

On the evidentiary and explanatory front, the panel notes that the judge:

  • Rejected the view that short sentences have deterred the defendant in the past (“processing time”).
  • Considered the likelihood of reentry and recurrence of risky behavior (e.g., DUIs), which implicates public safety under § 3553(a)(2)(C).
  • Consciously imposed a modest upward variance (3 months above the top of the range) and expressly considered going higher but credited time served in ICE/federal custody, signaling a measured exercise of discretion.

Finally, the panel addresses and rejects the appellant’s claim that the court ignored mitigation—including a 12-year gap since most of the older convictions, the defendant’s personal history, and an alleged sexual assault in state custody—explaining that failure to explicitly engage each point does not equate to legal error where the record shows the court heard and weighed them.

Impact and Practical Significance

Although unpublished and therefore non-binding in the Eleventh Circuit, the decision is instructive on several recurring issues in illegal reentry sentencings and beyond:

  • Leveraging “stale” convictions via recent conduct. The court’s “refreshed by recent conduct” framing provides a succinct rationale for treating older, zero-point convictions as probative under § 3553(a) when new, similar conduct suggests a continuing pattern. Expect the government to invoke this language where old DUIs or violent offenses mirror recent violations.
  • Substantial weight to criminal history is permissible. Rosales-Bruno’s logic is alive and well: district courts may give outsized weight to history and characteristics to protect the public and deter, even if the Guidelines have already captured some of that history. Appeals premised on “double counting” or overemphasis will face an uphill battle if the record shows reasoned consideration of § 3553(a).
  • Variance vs. departure. The decision reinforces that an upward variance requires no § 4A1.3 findings. Defendants challenging above-Guidelines sentences should be prepared to engage the § 3553(a) narrative head-on, rather than relying on the procedural strictures of departure provisions.
  • Modest variances with clear explanations are durable on appeal. A three-month variance, tethered to danger, deterrence, and respect for law—and justified as surpassing “processing time”—is paradigmatically reasonable under Gall/Irey, especially when the court acknowledges and weighs time served.
  • Supervised release and mootness. The footnote underscores that an appeal persists despite release or even removal when supervised release remains. This is a reminder that terms of supervised release can—and often do—carry practical and legal consequences post-custody.

One related but unlitigated wrinkle: U.S.S.G. § 5D1.1(c) states that “ordinarily” no supervised release is necessary for a deportable alien who will likely be removed. Although not addressed here (and not required for this appeal), district courts often justify supervised release in reentry cases for added deterrence or to facilitate enforcement if the defendant returns. This opinion, by affirming the sentence without engaging § 5D1.1(c), leaves that practice undisturbed.

Complex Concepts Simplified

  • Advisory Guidelines vs. statutory factors. The Sentencing Guidelines suggest a range; they are not binding. Judges must still apply § 3553(a)’s statutory factors (e.g., seriousness, deterrence, public protection) and impose a sentence that is “sufficient, but not greater than necessary.”
  • Substantive reasonableness review. On appeal, the question is not whether the appellate court would have imposed the same sentence, but whether the district court’s sentence falls within a reasonable range given the facts and § 3553(a) purposes. Reversal requires a “definite and firm conviction” of clear error in judgment.
  • Variance vs. departure. A departure applies a specific Guidelines policy (e.g., § 4A1.3’s underrepresented criminal history) to move off the range and typically requires specific findings. A variance applies § 3553(a) broadly to select a sentence outside the range without invoking a particular departure policy. Post-Booker, variances are common and do not require departure procedures.
  • “Zero-point” convictions and § 4A1.2(e)(3). Some older offenses are too remote to score criminal history points (often more than 10 or 15 years old, depending on offense type). Even so, courts may consider such conduct under § 3553(a) when it sheds light on risk, character, or patterns of behavior—particularly if new, similar conduct suggests ongoing danger.
  • “Processing time” concern. When a judge describes past sentences as “processing time,” the court is signaling that short custodial terms have failed to deter the defendant, justifying a longer sentence to promote respect for the law and protect the public.

Key Takeaways

  • District courts may give substantial weight to a defendant’s criminal history and pattern of conduct—even including older, non-scored offenses—when tailoring a sentence under § 3553(a).
  • A modest upward variance is sustainable when the court explains why the advisory range underrepresents danger, deterrence needs, or respect for law.
  • Challenging a variance as if it were a departure is unavailing; § 4A1.3(a) findings are not required unless the court actually departs under that Guideline.
  • Mitigation must be considered, but need not be discussed point-by-point on the record; failure to address each argument expressly does not equal error.
  • Illegal reentry sentencing remains highly individualized; defendants with DUI-heavy records or prior violent offenses face heightened risk of upward variances, particularly when recent conduct “refreshes” the probative value of older convictions.

Conclusion

United States v. Sanchez Ramirez reinforces the Eleventh Circuit’s well-established approach to substantive reasonableness review: give broad berth to district courts that provide a coherent § 3553(a) rationale, especially where public safety and deterrence are implicated by a persistent, DUI-laden record. The opinion’s most quotable contribution—older convictions “refreshed by his recent conduct”—captures a practical sentencing dynamic: Guidelines scoring windows do not erase the narrative significance of prior crimes when new offenses suggest the same risks have resurfaced. And by reaffirming the variance/departure distinction, the court underscores that an upward variance requires neither § 4A1.3 findings nor a formal departure framework. While not precedential, this decision will likely be cited persuasively in future illegal reentry sentencings across the circuit where prior “stale” misconduct and current behavior converge to justify modest upward variances.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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