United States v. Cortez: Affirming Broad Judicial Discretion to Impose Upward Variances in Illegal-Re-entry Cases Based on Uncontested PSR Facts and Violent Criminal Histories

Introduction

United States v. Cortez, a published 2025 decision of the Tenth Circuit, addresses the scope of a district court’s discretion to impose substantial upward variances in illegal-re-entry cases (8 U.S.C. § 1326) when the defendant’s violent criminal history and uncontested Presentence Investigation Report (PSR) support harsher punishment.

The defendant, Santiago Adelio Cortez, a Salvadoran national, pleaded guilty to illegal re-entry after removal following an aggravated felony. Despite an advisory Guideline range of 21-27 months (offense level 15 / criminal-history category II), the district court imposed 60 months. Cortez appealed, alleging procedural error (reliance on “clearly erroneous” facts—specifically that he “raped” his 2007 victim) and substantive unreasonableness (extent of variance, double-counting of prior crimes, and unwarranted sentencing disparity). The Tenth Circuit, in an opinion by Judge Baldock and concurrence by Judge McHugh, affirmed in full.

Summary of the Judgment

Procedural reasonableness. No plain-error: the court could deem unobjected PSR allegations admitted; labeling the 2007 assault a “rape” was not clearly erroneous given those facts.
Substantive reasonableness. A 60-month sentence—even more than double the high-end Guideline recommendation—was not “manifestly unreasonable.” The district court justifiably relied on:
- Defendant’s multiple violent convictions (manslaughter, battery, attempted kidnapping, assault, etc.).
- Rapid recidivism after prior removals and long prison terms.
- Evasive explanations and lack of rehabilitation.
- § 3553(a) goals of deterrence, respect for law, protection of the public.
Sentencing disparities. Reliance on national Judiciary Sentencing Information (JSIN) averages did not demonstrate an unwarranted disparity because those statistics do not necessarily capture “similarly situated” offenders.

Analysis

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007).
Clarified appellate review of variances—abuse-of-discretion and no “rigid mathematical” constraints. The panel invoked Gall to rebuff the argument that a doubling of the Guideline sentence is per se suspect.
Rita v. United States, 551 U.S. 338 (2007).
Emphasized deference to the sentencing judge who sees the defendant “face-to-face.” Anchored the court’s reluctance to second-guess the district judge’s credibility determinations about Cortez’s minimization of violence.
United States v. Craine, 995 F.3d 1139 (10th Cir. 2021).
Provides the “clearly erroneous” standard for factual findings, used to reject Cortez’s procedural-error claim.
United States v. Valdez, 128 F.4th 1314 (10th Cir. 2025).
Upheld a variance more than double the Guideline range in an alien-smuggling case. Cited as “most instructive” and precedent for considering recency and seriousness of criminal history not fully captured by Guidelines.
United States v. Vazquez-Garcia, 130 F.4th 891 (10th Cir. 2025).
Approved upward variance in a first-time § 1326 prosecution based on a child-abuse conviction; relied on uncontested PSR allegations. This case undergirds Cortez’s holding that violent prior conduct may be weighted heavily even if already scored in the Guidelines.
United States v. Lucero, 130 F.4th 877 (10th Cir. 2025).
Confirmed courts may rely on prior offenses both to calculate Guidelines and again under § 3553(a). Used to dismiss Cortez’s “double-counting” argument.
United States v. Garcia, 946 F.3d 1191 (10th Cir. 2020).
Limited the probative value of “bare national statistics” for § 3553(a)(6). Majority extends Garcia to data from the newer JSIN platform.

Legal Reasoning

Unobjected PSR facts are binding.
Fed. R. Crim. P. 32(i)(3)(A) lets courts adopt undisputed PSR portions. Because Cortez failed to object pre-sentencing, he “effectively admitted” the graphic details of the 2007 assault. That admission mooted his later attempt to recast events and supported the district court’s “rape” characterization.
Plain-error framework for unpreserved objections.
No relief without showing (1) error, (2) plainness, (3) effect on substantial rights, and (4) adverse effect on integrity of proceedings. The panel found no error at step 1.
Scope of substantive-reasonableness review.
Under Gall, appellate courts ask whether the sentence is “reasonable in light of the totality of circumstances,” not whether they would have selected a different sentence. The “major-variance / significant-justification” language of Gall remains qualitative, not formulaic.
Permissible reliance on prior crimes.
The Guidelines’ criminal-history score does not bar additional weight under other § 3553(a) factors (seriousness, deterrence, protection of public).
Sentencing-disparity analysis.
§ 3553(a)(6) concerns unwarranted disparities among “defendants with similar records and similar conduct.” Generic national averages, even JSIN aggregates, may omit nuanced facts (number of removals, violent nature of priors, candor with court). Thus, defendant failed to prove a disparity.

Impact of the Decision

Strengthens district-court discretion to impose significant upward variances in § 1326 cases whenever:
- the PSR describes violent, aggravating facts, and
- the defendant does not timely object.
Affirms validity of treating prior violent conduct as multi-purpose evidence—both for Guideline computation and for independent § 3553(a) assessment.
Limits usefulness of JSIN statistics in disparity arguments unless a defendant can show comparators are truly “similarly situated” beyond offense level and criminal-history category.
Signals practical importance of PSR objections. Defense counsel must preserve factual challenges pre-sentencing or face near-insurmountable hurdles on appeal.
Clarifies semantic leeway. Courts may colloquially label violent sexual assaults as “rape” when record facts substantiate non-consensual sexual activity, even if the conviction was for a differently named offense.

Complex Concepts Simplified

1. Presentence Investigation Report (PSR)

A comprehensive report prepared by Probation that summarizes the offense, criminal history, victim impact, and other factors. If neither party objects, its factual statements become judicial findings.

2. Variance vs. Departure

Departure: a movement outside the Guideline range based on enumerated Guideline policy statements.
Variance: any non-Guideline sentence based on statutory factors in § 3553(a). Cortez involved an upward variance.

3. Plain-Error Review

There was error;
The error was “plain” (obvious) at the time of appeal;
The error affected substantial rights (likely changed outcome);
Failure to correct would seriously affect fairness or integrity.

4. § 3553(a) Factors (Key ones in Cortez)

Nature and circumstances of the offense + history/characteristics of defendant.
Need for the sentence to reflect seriousness, promote respect for law, provide just punishment.
Need for deterrence and to protect the public.
Need to avoid unwarranted sentencing disparities.

5. Judiciary Sentencing Information (JSIN)

A Sentencing-Commission database providing national median & average sentences for defendants with specific Guideline references, offense levels, and criminal-history categories.

Conclusion

United States v. Cortez solidifies a trio of 2025 Tenth Circuit cases that collectively endorse robust sentencing discretion post-Booker. The decision reiterates that:

Uncontested PSR facts are effectively admissions, enabling judges to characterize conduct forcefully.
Substantial variances—here, more than double the Guideline maximum—are sustainable if anchored in persuasive § 3553(a) analysis.
Courts may, and often should, revisit violent criminal histories outside the rigid constraints of the Guideline scoring system.
Statistical disparity arguments require more than broad national averages; defendants must demonstrate true apples-to-apples comparators.

Practitioners should view Cortez as a cautionary tale: silence at sentencing can be fatal on appeal, and a history of violence will loom large in illegal-re-entry cases, rendering heavy upward variances not only permissible but, as affirmed here, entirely reasonable.