Tenth Circuit Confirms JSIN-Based Disparity Claims Are Substantive; Upholds Statutory-Maximum Upward Variance Without Explicit § 3553(a)(6) Recitation

Tenth Circuit Confirms JSIN-Based Disparity Claims Are Substantive; Upholds Statutory-Maximum Upward Variance Without Explicit § 3553(a)(6) Recitation

Case: United States v. Rios, No. 24-6251 (10th Cir. Oct. 21, 2025) (order and judgment)

Court: U.S. Court of Appeals for the Tenth Circuit

Panel: McHugh, Kelly, and Federico, Circuit Judges

Disposition: Affirmed

Precedential Status: Not binding precedent (may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1)

Introduction

This appeal arises from a 480-month sentence imposed on Michael Rios after he pled guilty to possession and distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and § 2251A(a)(2). The district court upwardly varied from an advisory Guidelines range of 262–327 months to the statutory maximum (40 years), to be followed by lifetime supervised release. Rios challenged the sentence as substantively unreasonable, arguing the variance created an unwarranted disparity compared to similarly situated defendants as reflected in U.S. Sentencing Commission JSIN data.

The government invoked an appeal waiver in Rios’s plea agreement, which barred procedural reasonableness challenges but preserved a challenge to substantive reasonableness if the court imposed a sentence above the advisory range. The central issues on appeal were:

  • Whether a JSIN-based disparity argument is a substantive or procedural claim in light of the appeal waiver; and
  • Whether, given the totality of circumstances, the district court abused its discretion by imposing a statutory-maximum upward variance, notwithstanding national sentencing patterns for comparable defendants.

The Tenth Circuit affirmed, clarifying that JSIN disparity arguments can be advanced as substantive reasonableness challenges despite a procedural-appeal waiver, and upholding a large upward variance based on the district court’s emphasis on offense gravity, the defendant’s predatory history, deterrence, and the need to protect the public.

Summary of the Opinion

  • Appeal waiver scope: The court held that Rios’s reliance on JSIN data to assert an “unwarranted disparity” is a substantive reasonableness challenge not barred by his waiver of procedural challenges. Arguments about how the § 3553(a) factors were applied or weighed can implicate both procedural and substantive reasonableness, but the gravamen here was substantive.
  • Use of JSIN on appeal: The court acknowledged JSIN’s purpose under § 3553(a)(6) and noted that JSIN can be considered on appeal even if not presented at sentencing, consistent with recent circuit authority and judicial notice principles.
  • Standard and holding on variance: Applying abuse-of-discretion review and considering the totality of circumstances, the panel concluded the district court’s reasons—supported by specific, articulable facts—were sufficiently compelling to justify the upward variance to the statutory maximum. The sentencing judge’s focus on the seriousness of the conduct, Rios’s history, deterrence, and community safety was within the bounds of permissible choice.
  • § 3553(a)(6) treatment: Although the district court did not expressly invoke § 3553(a)(6), its computation and consideration of the Guidelines and its assurance that it considered all § 3553(a) factors sufficed; the court is not required to recite “magic words.” Any disparity, in the district court’s view, was warranted by the record.

Analysis

Precedents Cited and Their Role

  • United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025): Anchors two key propositions:
    • Arguments about the district court’s explanation of § 3553(a) factors can implicate both procedural and substantive reasonableness. Here, the court recognized Rios’s claim as substantively focused, thus outside the procedural waiver.
    • For upward variances, the appellate inquiry considers the extent of the deviation and whether the justification is “sufficiently compelling,” grounded in specific, articulable facts. The panel applied that framework in affirming the variance.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024): Reiterates that district courts must consider § 3553(a) and that appellate review of substantive reasonableness is for abuse of discretion, looking at the totality of circumstances. The court applied this deferential standard.
  • United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025): Defines the high threshold for reversal—only when a sentence is “arbitrary, capricious, whimsical, or manifestly unreasonable.” This framed the panel’s deference to the sentencing judge.
  • United States v. Lucero, 130 F.4th 877 (10th Cir. 2025): Clarifies that “extraordinary” facts are not required to justify even very large variances (up to 100%) so long as reasons are sound and grounded in the record. The panel cited Lucero in rejecting any need for extraordinary facts to support the size of the variance here.
  • United States v. Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014): Distinguishes procedural error (failure to consider relevant factors) from substantive error (imposing a sentence that does not fairly reflect those factors), supporting the court’s characterization of Rios’s claim as substantive.
  • United States v. Doty, 150 F.4th 1351 (10th Cir. 2025): Supplies the phrase “exceeded the bounds of permissible choice” for substantive review; recognizes judicial notice of JSIN; and approves differential weighting among § 3553(a) factors. The panel used Doty to explain why the variance was within the sentencing court’s discretion despite JSIN disparities.
  • United States v. Brewster, 116 F.4th 1051 (9th Cir. 2024), cert. denied, 145 S. Ct. 1148 (2025): Cited for JSIN’s function in helping judges fulfill § 3553(a)(6). The Tenth Circuit’s reference reinforces JSIN’s legitimacy in disparity analysis.
  • United States v. Candelaria, 151 F.4th 1261 (10th Cir. 2025): States that when a court calculates and considers the advisory Guidelines, it necessarily considers unwarranted disparities; and the appellate court typically takes the district court at its word when it asserts it considered all § 3553(a) factors.
  • United States v. Cordova, 461 F.3d 1184 (10th Cir. 2006): No “magic words” are required to show the court was mindful of the § 3553(a) factors.
  • United States v. Coleman, 763 F.3d 706 (7th Cir. 2014): Quoted to justify limited reliance on PSR facts on appeal to provide necessary background for sentencing review.

Legal Reasoning

1) Appeal Waiver Did Not Bar the JSIN-Based Challenge

Rios’s plea agreement waived procedural reasonableness appeals but preserved a substantive reasonableness challenge if his sentence exceeded the advisory range. The government argued his reliance on § 3553(a)(6) and JSIN was a procedural complaint about the district court’s explanation. The panel disagreed, relying on Guevara-Lopez and Sanchez-Leon to distinguish challenges to a court’s failure to consider a factor (procedural) from claims that the ultimate sentence is unfair in light of the factors (substantive). Rios’s argument—that a sentence vastly above national norms is unwarranted—went to the essence of substantive reasonableness.

The panel also emphasized that although Rios did not present JSIN at sentencing, this omission was not fatal to a substantive reasonableness claim on appeal. Recent circuit authority allows consideration of JSIN on appeal and recognizes judicial notice of Commission data.

2) Substantive Reasonableness: The District Court’s Justification Was “Sufficiently Compelling”

Under deferential abuse-of-discretion review, the panel “consider[ed] the extent of the deviation” from the advisory range and tested whether the district court’s reasons were sufficiently compelling and anchored in specific, articulable facts. The court’s Statement of Reasons and oral remarks identified four grounds:

  • Nature and circumstances of the offense/history: An extraordinarily large collection (over 360,000 images), active participation in distribution channels, and a documented history of predatory behavior, including conduct underlying a dismissed sexual exploitation count and historical allegations consistent over time.
  • Seriousness of the offense/just punishment/respect for law: The judge found the conduct among the most disturbing in experience, and expressly noted that even the statutory maximum felt insufficient to reflect the seriousness of the crimes and related conduct.
  • Deterrence: The court aimed to deter similar conduct given the nature and scale of harm.
  • Protection of the public: The sentencing judge concluded Rios would continue to pose a grave danger to children absent a severe sentence.

These reasons, supported by record facts and consistent with § 3553(a), justified imposing the statutory maximum notwithstanding the JSIN data.

3) Treatment of § 3553(a)(6) (Unwarranted Disparities)

JSIN data for 2020–2024 showed that defendants with the same primary Guideline (§ 2G2.2), total offense level, and criminal history category received average sentences around 195 months (median around 192 months). Rios received 480 months. The court recognized the disparity but held that:

  • A sentencing court may give greater weight to seriousness, deterrence, and protection of the public than to national averages; the factors “don’t necessarily bear equal weight.”
  • By computing and considering the advisory Guidelines, the court necessarily considered disparity. The judge’s statement that all § 3553(a) factors were considered is ordinarily credited, and no “magic words” are required.
  • Given the record, any disparity was warranted.

4) Dismissed Conduct as Part of the Sentencing Picture

While the court did not formally rest the sentence on a Guidelines departure, the government’s advocacy referenced USSG § 5K2.21 (allowing upward departure to reflect the seriousness of dismissed conduct not accounted for by the Guidelines). The sentencing judge referenced the seriousness of conduct underlying a dismissed sexual exploitation count and indicated that even a statutory maximum was not commensurate with that conduct. The panel’s affirmance confirms that courts may consider such conduct when weighing § 3553(a) factors in support of a variance.

Impact

  • Appeal waivers and disparity arguments: In the Tenth Circuit, a JSIN-based “unwarranted disparity” argument can be advanced as a substantive reasonableness challenge even where procedural appeals are waived. This narrows the government’s ability to foreclose appellate review of disparity-based arguments via waivers.
  • Strengthening JSIN’s role: The court again signals that JSIN is a legitimate tool for § 3553(a)(6) analysis and may be considered on appeal through judicial notice. Defense counsel should still present JSIN at sentencing, but failure to do so will not bar a substantive reasonableness challenge.
  • Room for large upward variances: The decision reinforces that district courts retain broad discretion to impose significant upward variances—including to the statutory maximum—where the record substantiates an exceptional risk to the public, grave offense conduct, and compelling deterrence/just punishment needs. “Extraordinary facts” are not a prerequisite to justify large variances if reasons are sound and specific.
  • No formalistic recitation required: District courts need not recite § 3553(a)(6) or other factors verbatim so long as the record reflects awareness of and engagement with the § 3553(a) framework, including consideration of the Guidelines range.
  • Child exploitation cases: The opinion highlights aggravators that can justify statutory-maximum variances: an extraordinarily large collection, active distribution, involvement of very young victims, evidence of hands-on exploitation or predatory history, and compelling public safety concerns.
  • Dismissed conduct in variance analysis: The court’s acceptance of the sentencing judge’s consideration of conduct underlying dismissed counts underscores that such conduct, if supported by the record, may legitimately inform § 3553(a) weighing even without formally invoking a departure provision.

Complex Concepts Simplified

  • Procedural vs. substantive reasonableness:
    • Procedural concerns how the sentence was imposed (e.g., correct Guidelines calculation, consideration of § 3553(a) factors, adequate explanation).
    • Substantive asks whether the sentence length is reasonable given the § 3553(a) factors and the case-specific facts.
  • Appeal waiver: A defendant may waive the right to appeal certain issues (e.g., procedural reasonableness). Here, the waiver did not bar a substantive reasonableness challenge to an above-Guidelines sentence.
  • Variance vs. departure:
    • Departure: an adjustment within the Guidelines system based on specified policy statements (e.g., USSG § 5K2.21).
    • Variance: a sentence outside the Guidelines range based on § 3553(a) factors. This case involved an upward variance.
  • JSIN (Judiciary Sentencing Information): A Sentencing Commission tool providing statistics on sentences for similarly situated offenders (same primary Guideline, total offense level, and criminal history category). It informs, but does not control, § 3553(a)(6) analysis.
  • § 3553(a) and § 3553(a)(6): The statute sets forth purposes and factors for sentencing. Subsection (a)(6) focuses on avoiding “unwarranted” disparities among similarly situated defendants—a comparative, not determinative, consideration.
  • Abuse of discretion standard: Highly deferential appellate review that overturns only sentences that are arbitrary or manifestly unreasonable, considering the totality of circumstances and the district court’s explanation.
  • Judicial notice of JSIN: Appellate courts may take judicial notice of Commission data like JSIN, permitting its use on appeal even if not introduced below.
  • Use of dismissed conduct: Courts may consider conduct underlying dismissed or uncharged offenses when evaluating § 3553(a) factors or when departing under relevant Guideline policy statements, provided the conduct is supported by the record.
  • Statutory maximum and consecutive terms: Each count here carried a 20-year cap; the total 40-year sentence reflects consecutive terms, which federal courts may impose when justified by § 3553(a) factors.

Key Takeaways

  • JSIN-based “unwarranted disparity” arguments are substantive and may survive procedural-appeal waivers when the sentence exceeds the advisory range.
  • Large upward variances, including to the statutory maximum, will be affirmed if the sentencing court provides specific, record-based reasons grounded in § 3553(a), even without “magic words” or an explicit § 3553(a)(6) discussion.
  • District courts are permitted to give greater weight to seriousness, deterrence, and protection of the public than to national sentencing averages, particularly in cases with extreme facts.
  • Defense counsel should consider presenting JSIN at sentencing but can still invoke it on appeal to frame a substantive reasonableness challenge.

Practice Pointers

  • For defense counsel:
    • Proactively submit JSIN data at sentencing to concretize disparity arguments and invite district court engagement.
    • Address potential aggravators—especially dismissed or uncharged conduct the government may invoke—to blunt their impact on § 3553(a).
    • Develop mitigation tied to § 3553(a) purposes (e.g., rehabilitation content, recidivism risk assessments) to counter heavy emphasis on public protection.
  • For prosecutors:
    • Document specific, articulable facts supporting upward variances—scope/scale of harm, distribution conduct, pattern of predation, and public safety concerns.
    • Where appropriate, identify dismissed conduct and explain why the Guidelines do not fully capture the offense seriousness.
  • For district judges:
    • Articulate reasons tied to § 3553(a) and to the record; while no magic words are needed, specificity aids affirmance, especially for large variances.
    • Note consideration of the advisory range and the § 3553(a) factors; explain why any disparity is warranted by case-specific facts.

Conclusion

United States v. Rios confirms two important propositions for federal sentencing in the Tenth Circuit. First, JSIN-based disparity arguments survive procedural-appeal waivers as substantive challenges to above-Guidelines sentences. Second, even very large upward variances—including to the statutory maximum—will be affirmed where the district court grounds its decision in specific, articulable facts demonstrating grave offense conduct, a predatory history, and compelling needs for deterrence and public protection. The court’s approach underscores deference to sentencing judges, the legitimacy of JSIN as an informational tool (not a constraint), and the principle that § 3553(a) permits uneven weighting among factors when the record justifies it.

Although nonprecedential, Rios will be persuasive authority in the Tenth Circuit for litigants navigating the interplay of appeal waivers, JSIN disparity claims, and the justification required for substantial upward variances—particularly in cases involving child exploitation offenses and related public safety concerns.

Case Details

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

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