Tenth Circuit Jurisdictional Bar to Reviewing Discretionary Denials of Guideline Departures When the District Court Recognizes Its Authority

Case: United States v. Trejo-Mendoza (10th Cir. June 11, 2026) (Order and Judgment; nonprecedential)

1. Introduction

In United States v. Trejo-Mendoza, the Tenth Circuit dismissed an appeal after appointed counsel filed an Anders brief challenging a within-Guidelines sentence for unlawful reentry. The defendant, Yair De Jesus Trejo-Mendoza, pleaded guilty to reentry after removal (charged under 8 U.S.C. § 1326 in the indictment; the opening paragraph references 18 U.S.C. § 1326), and received an 18-month federal sentence.

The central issue on appeal was whether the court of appeals could review the district court’s denial of a downward departure under U.S.S.G. § 2L1.2 cmt. n. 7 (2023), which permits a sentencing court to consider a departure to account for certain state-custody time that will not be credited by the Bureau of Prisons, when immigration authorities locate the defendant during state custody.

Key factual context drove the request: ICE placed a detainer in November 2023 while the defendant was in state custody; he served a state sentence for DUI and related conduct; a federal warrant issued in January 2024 was not executed until February 2025; by the time of federal sentencing (June 2025), the state term had been fully discharged, eliminating any possibility of a concurrent federal sentence under 18 U.S.C. § 3584(a).

2. Summary of the Opinion

The panel granted counsel’s motion to withdraw and dismissed the appeal as meritless under Anders v. California. On the merits review required by Anders, the court concluded:

  • No appellate jurisdiction existed to review the district court’s discretionary denial of a downward departure, because the sentencing judge recognized the legal authority to depart but chose not to.
  • The defendant’s within-Guidelines sentence was substantively reasonable, and he did not have a nonfrivolous basis to rebut the presumption of reasonableness attached to a within-range sentence.

3. Analysis

3.1. Precedents Cited

  • Anders v. California, 386 U.S. 738 (1967)
    The foundation for the procedural posture: when counsel conscientiously concludes an appeal is wholly frivolous, counsel may seek to withdraw and must file a brief identifying anything that might arguably support the appeal; the appellate court must then independently review the record. The panel used this framework to conduct an independent examination before dismissing.
  • United States v. Calderon, 428 F.3d 928 (10th Cir. 2005)
    Cited for the Tenth Circuit’s description of its duty upon receiving an Anders brief: a “full examination of the record” to determine whether the claims are wholly frivolous. This case anchors the panel’s method and legitimizes dismissal when no nonfrivolous issue exists.
  • United States v. Diaz-De La Cruz, 2024 WL 799383 (10th Cir. 2024) (unpublished)
    Used to situate the general proposition that denial of a departure can “open the door” to a procedural reasonableness challenge—while immediately noting that appealability is constrained by statute and jurisdictional doctrine.
  • United States v.  Kaspereit, 994 F.3d 1202 (10th Cir. 2021)
    Cited for two key points: (1) departure/variance are analytically distinct; and (2) the quote (via Diaz-De La Cruz) explaining how denial of a departure can relate to procedural reasonableness concepts. The opinion also relies on Kaspereit to clarify sentencing vocabulary, which matters because the jurisdictional analysis turns on whether the defendant challenges an unreviewable discretionary departure decision or a reviewable legal error/variance determination.
  • United States v. Dawson, 90 F.4th 1286 (10th Cir. 2024)
    The controlling jurisdictional rule. The panel relied on Dawson for the principle that, under 18 U.S.C. § 3742(a), the court of appeals lacks jurisdiction to review a district court’s discretionary denial of a downward departure. The “only exception” is when the denial rests on a mistaken belief that the Guidelines deprive the judge of authority to depart. Here, the sentencing judge expressly acknowledged authority under § 2L1.2 cmt. n. 7, so the exception did not apply.
  • United States v. McComb, 519 F.3d 1049 (10th Cir. 2007)
    Cited for the presumption of substantive reasonableness that attends a within-Guidelines sentence. This presumption substantially narrowed any plausible substantive-reasonableness argument once the court determined that the only concrete complaint was the discretionary refusal to credit unrelated state time.
  • United States v.  McCrary, 43 F.4th 1239 (10th Cir. 2022)
    Provided the abuse-of-discretion framing: appellate review asks whether the sentence falls within the “range of rationally available choices” supported by the facts and law. The panel used this standard to conclude the low-end 18-month sentence was rational given the district court’s view that the state offenses were unrelated and warranted separate punishment.

3.2. Legal Reasoning

(a) Statutory gatekeeping under 18 U.S.C. § 3742(a)

The opinion’s core “new rule” (applied and reaffirmed rather than newly invented) is jurisdictional: appellate review of sentencing is limited to the categories in 18 U.S.C. § 3742(a). Within that framework, the Tenth Circuit treats a district court’s discretionary refusal to depart downward as unreviewable—unless the refusal stems from a legal misunderstanding about authority.

(b) The “authority-recognized” vs. “authority-misapprehended” divide

The sentencing transcript was decisive. The district court stated it had authority “to impose what would, in essence, be a concurrent sentence” via a Note 7 departure, but found Note 7 inapt because:

  • the state crimes (DUI, leaving the scene, eluding, etc.) were “separate unrelated offenses” from unlawful reentry; and
  • the court would not have ordered concurrency even if the state sentence had still been undischarged.

Because those reasons reflect an exercise of discretion rather than a belief of legal incapacity, Dawson compelled the jurisdictional dismissal of any procedural-reasonableness claim framed as “the judge should have departed.”

(c) Substantive reasonableness remained reviewable but nonfrivolous arguments were absent

The panel distinguished procedural from substantive reasonableness. Although the defendant preserved the ability to argue that a longer-than-requested sentence was “imposed in violation of law” (18 U.S.C. § 3742(a)(1)) by advocating for time served, the court emphasized:

  • the sentence was within the 18–24 month Guidelines range; and
  • a within-range sentence carries a presumption of reasonableness (United States v. McComb).

On this record, the district court’s rationale—refusing to offset a federal reentry sentence with time served for unrelated state crimes—fell within the permissible “range of rationally available choices” (United States v.  McCrary).

(d) Note 7’s role and the concurrency backdrop (18 U.S.C. § 3584(a))

The defendant’s theory was essentially that a 13-month delay in executing the federal warrant deprived him of a chance at a concurrent sentence. But because the state sentence was discharged before federal sentencing, the judge could not order concurrency under 18 U.S.C. § 3584(a). Note 7 is thus presented as a potential remedial mechanism—yet one that remains discretionary and case-specific. The district court viewed Note 7 as aimed at circumstances where concurrency would otherwise be appropriate, a condition it found absent here.

(e) The opinion’s forward-looking observation: departures are being phased out

The panel noted that, under the U.S. Sentencing Commission’s 2025 amendments, “the U.S. Sentencing Commission eliminated departures.” See U.S. Sent’g Guidelines Manual app. C, amend. 836 (U.S. Sent’g Comm’n 2025). The court added that judges may still rely on facts that previously supported departures to impose non-Guidelines sentences as variances under 18 U.S.C. § 3553(a).

This matters because the jurisdictional rule in Trejo-Mendoza is tightly connected to “departures” as a formal Guidelines mechanism. As departures recede and variances do more work, litigants may recast similar arguments as § 3553(a) variance requests—potentially changing the framing of appellate review (though within-Guidelines outcomes will still face McComb’s presumption).

3.3. Impact

  • Reinforces a bright jurisdictional limit in sentencing appeals. In the Tenth Circuit, if the district court acknowledges authority to depart but declines, defendants generally cannot obtain appellate review of that discretionary refusal under § 3742(a).
  • Constrains “delay” arguments tied to lost concurrency when framed as a departure entitlement. Even where federal warrant execution is delayed and the defendant loses the practical ability to seek concurrent sentencing, the remedy via § 2L1.2 cmt. n. 7 remains discretionary; absent a legal misunderstanding, appellate courts will not second-guess the refusal.
  • Signals a transition in sentencing litigation strategy post-2025 amendments. As “departures” are eliminated, similar equity-based claims may increasingly be argued as § 3553(a) variances. That may preserve reviewability more often than departure denials, but the abuse-of-discretion standard and within-Guidelines presumption will remain substantial hurdles.
  • Practical lesson for defense counsel. To preserve appellate review where possible, counsel should (1) clearly request a variance under § 3553(a) in addition to any departure-like request, and (2) develop a record that the court understood and considered the variance request independently.

4. Complex Concepts Simplified

  • Anders brief: A filing by appointed defense counsel stating that, after careful review, there are no nonfrivolous issues to appeal; the appellate court must independently review the record before allowing counsel to withdraw and dismissing.
  • Downward departure vs. variance: A departure (in the older Guidelines framework) is an adjustment authorized by specific Guidelines provisions; a variance is a sentence outside the Guidelines range based on the general sentencing factors in 18 U.S.C. § 3553(a).
  • Procedural vs. substantive reasonableness: Procedural claims challenge the steps the judge took (calculations, explanations, legal errors). Substantive claims challenge the length of the sentence as unreasonable in light of § 3553(a).
  • Appellate “jurisdiction” over sentencing: A court of appeals can only review sentences in the categories Congress allowed (18 U.S.C. § 3742(a)). Some discretionary decisions—like a discretionary denial of a departure—are outside those categories unless based on a legal error about authority.
  • Concurrent sentence: Serving two sentences at the same time. Under 18 U.S.C. § 3584(a), courts may order concurrency only with an “undischarged term.” If the state sentence is already completed, concurrency is unavailable.
  • BOP credit / Note 7 concept: The Bureau of Prisons, not the sentencing court, determines certain custody credits. Note 7 recognizes that some time in state custody after immigration authorities locate a defendant may not be credited toward the federal sentence, and allows the judge to consider a departure-like adjustment to account for that uncredited time—if appropriate.

5. Conclusion

United States v. Trejo-Mendoza is a straightforward but consequential application of Tenth Circuit sentencing-appeal limits: when a district court explicitly recognizes its authority to grant a Guidelines-based reduction (here, U.S.S.G. § 2L1.2 cmt. n. 7) and simply declines as a matter of discretion, the court of appeals lacks jurisdiction to review that denial under 18 U.S.C. § 3742(a), as articulated in United States v. Dawson. What remains reviewable—substantive reasonableness—will rarely succeed against a within-Guidelines, well-explained sentence backed by the court’s view that unrelated state crimes should not offset a federal unlawful-reentry punishment.