United States v. Mora: Upholding Upward Variances in Illegal-Reentry Sentencing Based on Repeated Immigration and Criminal Violations

United States v. Mora: Upholding Upward Variances in Illegal-Reentry Sentencing Based on Repeated Immigration and Criminal Violations

I. Introduction

In United States v. Mora, No. 25-5030 (10th Cir. Dec. 24, 2025) (unpublished), the Tenth Circuit Court of Appeals affirmed an above-Guidelines sentence imposed on a defendant convicted of illegal reentry after removal under 8 U.S.C. § 1326(b). The case centers on the district court’s decision to impose a 21‑month sentence—an upward variance from the advisory United States Sentencing Guidelines range of 10–16 months—based on the defendant’s repeated illegal reentries and a criminal history that included both older and more recent offenses.

The appeal raised two core issues:

  • Procedural reasonableness: whether the district court sufficiently explained why it relied on prior convictions and removals (many years old) to justify an upward variance, and whether it adequately distinguished this defendant from the “mine‑run” of illegal-reentry offenders.
  • Substantive reasonableness: whether, considering all the sentencing factors in 18 U.S.C. § 3553(a), the 21‑month sentence was greater than necessary and thus an abuse of discretion, especially given the age of some prior felonies and prior deportations.

The Tenth Circuit rejected both challenges and affirmed. Although the decision is designated as an “Order and Judgment” and is nonprecedential in the formal sense, it is citable for persuasive value and reflects how the Tenth Circuit expects district courts to handle upward variances in illegal-reentry cases, particularly when defendants have a history of repeated immigration and criminal violations.

II. Summary of the Opinion

Felipe Bautista Mora, a Mexican national, pleaded guilty (without a plea agreement) to one count of illegal reentry after removal, in violation of 8 U.S.C. § 1326(b). His criminal history included:

  • Four prior deportations: 1994, 1996, 2000, and 2002.
  • Five prior convictions:
    • 1994 – possession of a stolen vehicle;
    • 1997 – possession of a controlled substance;
    • 2011 – operating a vehicle without a valid license;
    • 2015 – felony child abuse by injury;
    • 2024 – unlawful possession of a controlled drug and obstructing an officer (the traffic-stop incident that led to the present case).

The Presentence Report (PSR) calculated:

  • Total offense level: 10 (including a 4‑level enhancement for a prior felony child-abuse conviction after deportation and a 2‑level reduction for acceptance of responsibility).
  • Criminal History Category: III.
  • Advisory Guidelines range: 10–16 months.

Neither party objected to the PSR. The defendant requested a 10‑month sentence (bottom of the range). The government requested an upward variance to 30 months, arguing that Mora’s repeated illegal reentries and continuing criminal conduct showed a “habitual disregard” for the law and warranted stronger deterrence and protection of the public.

The district court agreed that Mora’s history set him apart from typical illegal-reentry defendants, concluded that additional deterrence and punishment were necessary, and imposed a 21‑month sentence. It did so by “varying upward to a total offense level of 12,” which corresponds to a Guidelines range of 15–21 months, and then selecting the top of that range.

On appeal, Mora argued:

  • Procedural error: the court did not adequately explain why his old felonies and prior deportations (with the last deportation in 2002) justified an upward variance, particularly given that these factors were already incorporated into the Guidelines calculation; and the court’s explanation of what made his case different from ordinary reentry cases was insufficient.
  • Substantive unreasonableness: given the age of some convictions and deportations, and the PSR’s existing enhancements, the § 3553(a) factors did not justify any upward variance.

The Tenth Circuit:

  • Held that the district court’s explanation was adequate and not arbitrary, capricious, or manifestly unreasonable, therefore no procedural error occurred.
  • Concluded that, considering the totality of circumstances, Mora’s repeated deportations and criminal conduct provided a sufficient basis for an upward variance aimed at deterrence, respect for the law, just punishment, and protection of the public; therefore, the sentence was substantively reasonable.
  • Affirmed the 21‑month sentence under a deferential abuse-of-discretion standard.

III. Detailed Analysis

A. Factual and Procedural Background in Context

The opinion situates Mora in a familiar factual pattern for § 1326(b) prosecutions but emphasizes several aggravating features:

  • Repeated deportations and reentries: Mora was deported four times between 1994 and 2002, barred from reentry for five to ten years, yet he reentered again by 2005 and remained in the United States long enough to incur further convictions.
  • Escalating criminal conduct: his history began with property and drug offenses in the 1990s, included a serious felony child-abuse conviction in 2015, and culminated in a 2024 drug/obstruction offense involving resistance during a traffic stop.
  • Link between immigration and crime: the government emphasized, and the court clearly accepted, that Mora did not merely reenter to live quietly but repeatedly engaged in criminal conduct after returning.

These facts framed the sentencing question: does a defendant with a long history of immigration violations and varied criminal conduct, some of which is relatively old, warrant an above-Guidelines sentence for illegal reentry?

B. The Two-Step Reasonableness Framework

The Tenth Circuit followed the established two-part “reasonableness” review of federal sentences, rooted in Gall v. United States:

  1. Procedural reasonableness: was the sentence imposed using correct and fair procedures (proper calculation of Guidelines, consideration of § 3553(a), reliance on accurate facts, and adequate explanation)
  2. Substantive reasonableness: assuming the procedure is correct, is the length of the sentence reasonable in light of the statutory factors and the totality of circumstances?

This framework is expressly cited through United States v. Jackson, 82 F.4th 943 (10th Cir. 2023), which the panel uses to restate the standard: sentencing review has a procedural component and a substantive component.

C. Precedents Cited and Their Role

1. Gall v. United States, 552 U.S. 38 (2007)

Gall is the Supreme Court’s foundational case on post-Booker sentencing review. The panel draws from Gall for two key propositions:

  • Definition of procedural error: The opinion quotes Gall’s list: failing to calculate or miscalculating the Guidelines range, treating the Guidelines as mandatory, ignoring the § 3553(a) factors, relying on clearly erroneous facts, or failing to adequately explain the selected sentence (especially when deviating from the Guidelines).
  • Standard of review: Both procedural and substantive reasonableness are reviewed under an abuse-of-discretion standard.

By invoking Gall, the Tenth Circuit underscores that an upward variance is not presumptively suspect; instead, the key is whether the district court:

  • correctly used the Guidelines as a starting point;
  • considered the statutory factors; and
  • gave a reasoned, individualized explanation tied to the specific defendant and facts.

2. United States v. Jackson, 82 F.4th 943 (10th Cir. 2023)

Jackson is cited simply to restate the familiar two-step reasonableness inquiry. It shows continuity in the Tenth Circuit’s sentencing framework and confirms that Mora fits within that established approach rather than charting a new doctrinal path.

3. United States v. Eddington, 65 F.4th 1231 (10th Cir. 2023)

Eddington addressed standards of review and preservation for procedural sentencing claims. The panel references it for these points:

  • Preserved procedural claims are reviewed for abuse of discretion.
  • Unpreserved procedural claims are reviewed only for plain error.

In Mora, the court notes a potential issue—whether the defendant preserved his procedural-objection arguments—but then explicitly sidesteps the preservation dispute because it can affirm on the stronger ground that there was no abuse of discretion even under the more defendant-favorable standard. By doing so, the opinion:

  • avoids a technical resolution on preservation, and
  • signals that, in its view, the sentencing procedures easily cleared the bar for reasonableness.

4. United States v. Garcia, 936 F.3d 1128 (10th Cir. 2019)

Garcia reiterates an appellate practice rule: if a defendant fails to argue plain error in his opening brief, he waives that theory of review. The panel cites this rule but, again, chooses not to rely on waiver; instead, it affirms on the merits. The citation serves mainly as a reminder that defendants must be explicit about the standard of review they invoke when their claims were not preserved below.

5. United States v. Haley, 529 F.3d 1308 (10th Cir. 2008)

Haley provides a working definition of “abuse of discretion”: a judgment that is “arbitrary, capricious, whimsical, or manifestly unreasonable.” Mora quotes this language to emphasize how deferential appellate review is. For Mora to win, he had to show something more than disagreement with the district court’s weighing of factors; he had to show that the decision was outside the broad range of reasonable outcomes.

6. United States v. Mendoza, 543 F.3d 1186 (10th Cir. 2008)

Mendoza plays a particularly important role in the procedural-reasonableness analysis. In Mendoza, the Tenth Circuit vacated an upward variance as procedurally unreasonable because the sentencing court’s explanation:

  • was general and boilerplate,
  • cited “most of the relevant factors” but in an abstract way, and
  • failed to articulate any case-specific facts beyond noting that the defendant was likely to be deported.

By contrasting Mora with Mendoza, the panel sends a clear message: what mattered in Mora’s case was the presence of a fact-specific, individualized explanation. The district court:

  • explicitly addressed Mora’s “prior criminal convictions and removals,”
  • linked those facts to specific § 3553(a) goals (deterrence, respect for the law, just punishment, and public protection), and
  • explicitly stated that these facts separated Mora “from the mine-run of similarly situated defendants.”

Thus, unlike in Mendoza, the explanation here was sufficiently tethered to the defendant and his conduct.

7. United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)

Barnes shapes the substantive-reasonableness portion of the opinion. The panel draws three main propositions from Barnes:

  • Substantive reasonableness is assessed considering the “totality of the circumstances” in light of § 3553(a).
  • The Tenth Circuit has “upheld even substantial variances” where the district court properly weighed the factors and gave valid reasons.
  • Appellate courts must give “due deference” to the district court’s judgment that the § 3553(a) factors “on a whole” justify the extent of the variance.

Barnes thus functions as the doctrinal anchor for affirming upward variances: once procedural soundness is established, the appellate court will rarely second-guess a district judge’s weighing of the statutory factors unless the sentence is dramatically out of line with the record.

8. United States v. Cruz-Artiaga, 739 F. App’x 492 (10th Cir. 2018) & United States v. Espinoza-Flores, 712 F. App’x 836 (10th Cir. 2018)

These two unpublished Tenth Circuit cases are cited explicitly as nonprecedential but persuasive authority, consistent with 10th Cir. R. 32.1(A). Both decisions:

  • involved illegal-reentry defendants with multiple prior reentries, and
  • upheld upward variances premised on the need for stronger deterrence in light of repeated immigration violations.

By invoking Cruz-Artiaga and Espinoza-Flores, the panel underscores that:

  • District courts do not abuse their discretion by placing significant weight on prior unlawful reentries when deciding whether to vary upward.
  • Repetition itself—regardless of exact timing—can justify a higher sentence to deter both the individual defendant and others.

Thus, Mora sits squarely within an existing line of (persuasive) Tenth Circuit authority approving enhanced penalties for repeated illegal reentry.

9. United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025)

Mora relied on Guevara-Lopez to argue that procedural and substantive reasonableness can overlap, particularly when the challenge concerns the adequacy of the district court’s explanation of the § 3553(a) factors. Guevara-Lopez acknowledges that, in such cases, the procedural and substantive inquiries may not be cleanly separable.

The panel in Mora explicitly notes that, given its analysis, any such overlap does not matter: even if some issues straddle both categories, the district court’s explanation and weighing of factors pass muster. The citation functions more as a nod to analytical nuance than as a limit on the district court’s discretion.

D. The Court’s Legal Reasoning

1. Procedural Reasonableness: Adequacy of the Explanation

Mora’s main procedural argument was that the district court:

  • did not sufficiently explain why older convictions and years-old deportations warranted an upward variance, and
  • failed to articulate how his case was truly different from the “mine-run” of illegal-reentry cases, particularly given that the Guidelines already accounted for his criminal history and removals.

The Tenth Circuit rejected this, pointing to several aspects of the record:

  • The district court expressly adopted the PSR’s factual findings, which detailed Mora’s criminal and deportation history.
  • The court explicitly stated that it had considered the relevant § 3553(a) factors, including:
    • nature and circumstances of the offense;
    • defendant’s history and characteristics;
    • need for deterrence;
    • promotion of respect for the law;
    • just punishment; and
    • protection of the public.
  • The court articulated that Mora’s multiple prior convictions and removals were not merely background facts but were the specific reasons for the upward variance.
  • The court explicitly stated that these factors distinguished Mora from the “mine-run of similarly situated defendants” and justified a variance.

The opinion contrasts this targeted, defendant-specific explanation with the generic, boilerplate statements condemned in Mendoza. The message is clear: the district court need not provide a lengthy or elaborate explanation, but it must connect particular facts in the record to the reasons for deviating from the Guidelines. That was done here.

Importantly, the Tenth Circuit also implicitly rejects the notion that there is a procedural bar against considering old convictions or old deportations. As long as the court explains how those facts bear on the § 3553(a) purposes in the present, their age does not render them procedurally off-limits.

2. Substantive Reasonableness: Totality of the Circumstances

On substantive reasonableness, Mora’s central claim was that:

  • the age of some prior felonies (10, 28, and 31 years old) and the last deportation (20 years earlier) made them weak grounds for an upward variance, and
  • the Guidelines range already accounted for these prior events through the offense level and criminal-history category, so relying on them again was unwarranted.

The Tenth Circuit evaluated this argument under the deferential standard articulated in Gall and Barnes, considering the “totality of the circumstances” and giving “due deference” to the district court’s judgment.

Key aspects of the panel’s reasoning:

  • The district court’s duty under § 3553(a) is to impose a sentence that is “sufficient, but not greater than necessary” to:
    • reflect the seriousness of the offense,
    • promote respect for the law,
    • provide just punishment,
    • afford adequate deterrence, and
    • protect the public.
  • Mora’s repeated illegal reentries and continued criminal conduct (including child abuse and the recent obstruction/drug offense) are all directly relevant to deterrence, respect for the law, just punishment, and public protection.
  • Tenth Circuit unpublished decisions (Cruz-Artiaga, Espinoza-Flores) have already upheld upward variances in illegal-reentry cases based on repeated reentries as evidence that stronger deterrence is needed.
  • Even though some offenses were old, the pattern over time—persistently returning after deportations and continuing to commit crimes—supports a conclusion that a within-Guidelines sentence might not be adequate to achieve § 3553(a) goals.

The court then concludes that a 21‑month sentence—while above the original range of 10–16 months—is within the broad zone of reasonableness:

  • The district court effectively recalibrated the case as if Mora’s offense level were 12, yielding a 15–21 month “notional” range, and then selected the high end.
  • Under Barnes, the Tenth Circuit has upheld even larger variances when grounded in well-explained factors.
  • Given Mora’s history, the court saw no basis to label the sentence arbitrary or greater than necessary.

In effect, the panel holds that the age of prior convictions and deportations does not, standing alone, render an upward variance substantively unreasonable when the overall record shows a long-standing pattern of disregard for U.S. immigration and criminal laws.

E. The “Double-Counting” / “Double-Dipping” Argument

Mora argued that relying on his criminal history and prior removals both to calculate the Guidelines range and then again to justify an upward variance amounted to “double-dipping.” Although the panel does not explicitly use the phrase “double counting,” it implicitly rejects this complaint.

The opinion reflects the now-standard understanding that:

  • The Guidelines calculation is only the starting point, not the end point, of sentencing under Booker and Gall.
  • Section 3553(a) separately requires courts to consider the defendant’s history and the need for deterrence, respect for the law, just punishment, and public protection.
  • Therefore, the same underlying facts (e.g., multiple prior convictions, repeated deportations) may:
    • inform the Guideline calculation (e.g., through offense-level enhancements and criminal history), and
    • also be independently evaluated under § 3553(a) in deciding whether the Guideline range is sufficient.

The implicit principle: there is no categorical prohibition against revisiting Guideline-relevant facts under § 3553(a). A court may decide that, even after accounting for those facts in the Guidelines, they still warrant an upward variance when measured against the statutory sentencing purposes.

F. The “Mine-Run” Concept

A notable phrase used by the district court and highlighted by the Tenth Circuit is that Mora was different from the “mine-run of similarly situated defendants.” This concept flows from Supreme Court and appellate discussions recognizing that:

  • Guidelines are designed to cover the “heartland” of typical cases; and
  • When a defendant’s circumstances fall outside that “mine-run,” a variance can be warranted.

In this case, what made Mora different, according to the district court and accepted by the Tenth Circuit, was:

  • the combination of multiple prior deportations,
  • his repeated and relatively rapid returns to the United States, and
  • a pattern of criminal conduct spanning decades, including serious offenses, not merely immigration or minor traffic infractions.

Thus, the “mine-run” language functions as part of the court’s justification that Mora’s case was not typical and that a higher sentence was needed to address his particular risk and record.

IV. Impact and Significance

A. On Illegal-Reentry Sentencing

While unpublished, Mora is likely to be cited by prosecutors and courts in illegal-reentry cases within the Tenth Circuit because it:

  • Affirms the appropriateness of upward variances when a defendant has:
    • multiple prior deportations; and
    • a history of criminal conduct (especially including serious felonies and recent offenses) after returning to the United States.
  • Confirms that:
    • The need for deterrence—both specific (for the defendant) and general (for others)—can legitimately justify higher sentences for repeat reentrants.
    • The age of prior offenses and deportations does not categorically weaken their relevance when the overall pattern reflects long-term lawbreaking.

B. On the Use of Old Convictions and Removals

Mora reinforces that older convictions and older deportations:

  • remain relevant under § 3553(a) for assessing:
    • propensity to reoffend,
    • respect (or lack of respect) for the law, and
    • the need for enhanced deterrence.
  • can support an upward variance even if already reflected in the Guidelines.

Defendants arguing for leniency based on the age of their prior records must therefore do more than point to time passed; they must show that their more recent conduct genuinely reflects changed behavior and diminished risk—something Mora could not credibly demonstrate given his 2015 and 2024 convictions.

C. On Explanation Requirements for Variances

The opinion contributes to the ongoing, practical question: how much explanation must district courts give when varying from the Guidelines?

Key takeaways:

  • Individualization is crucial: Courts must tie reasons to the specific defendant and case facts; mere recitation of § 3553(a) is not enough (as Mendoza makes clear).
  • Brevity is not fatal: A concise explanation can be sufficient if it:
    • identifies concrete facts (e.g., prior deportations, criminal history);
    • links them explicitly to statutory goals (deterrence, respect for the law, public protection); and
    • articulates why these facts make the case atypical or inadequately addressed by the Guidelines.

Mora thus offers a roadmap: a short but targeted explanation, grounded in the record, can survive procedural reasonableness review.

D. On Standards of Review and Appellate Strategy

The opinion also serves as a cautionary tale for appellate lawyers:

  • Challenges to sentencing decisions must confront the abuse-of-discretion standard, under which appellate courts are highly deferential.
  • If procedural challenges were not clearly preserved at sentencing, appellants must be prepared to argue plain error in their briefs; failure to do so may result in waiver (as Garcia warns).
  • Even where preservation is doubtful, appellate courts may bypass the issue by affirming on the ground that, under any plausible standard, there was no error—exactly what the Tenth Circuit did in Mora.

V. Simplifying Key Legal Concepts

A. Procedural vs. Substantive Reasonableness

  • Procedural reasonableness asks: Did the sentencing judge follow the correct process?
    • Correctly calculate the Guidelines?
    • Recognize the Guidelines are advisory, not mandatory?
    • Consider the statutory factors in § 3553(a)?
    • Rely on accurate facts?
    • Explain the sentence, especially when deviating from the Guidelines?
  • Substantive reasonableness asks: Is the length of the sentence reasonable given the case as a whole and the § 3553(a) purposes?

B. Upward Variance vs. Departure

  • A departure is an adjustment within the Guidelines framework based on a specific policy or provision written into the Guidelines themselves.
  • A variance is a sentence outside the advisory Guideline range based on the broader statutory factors in § 3553(a).
  • In practice, judges sometimes “express” a variance by referencing a hypothetical higher or lower offense level (as the judge did with offense level 12 in Mora), but the legal authority is still § 3553(a), not a Guidelines departure rule.

C. Abuse of Discretion

“Abuse of discretion” is a very deferential standard. A decision is reversed only if it is:

  • Arbitrary: no rational connection between facts and result;
  • Capricious or whimsical: based on personal whims rather than law and evidence;
  • Manifestly unreasonable: clearly outside the range of acceptable outcomes given the record.

Under this standard, the question is not whether the appellate judges would have imposed the same sentence, but whether any reasonable judge could have imposed it. In Mora, the answer was clearly “yes.”

D. “Mine-Run” Defendants

The “mine-run” refers to typical or ordinary defendants who fit the general pattern anticipated by the Guidelines. When a defendant’s case is materially different—more serious, more persistent, or more risky—a court may conclude that the case falls outside the “mine-run” and that a variance is appropriate.

E. Illegal Reentry under 8 U.S.C. § 1326(b)

  • Section 1326 makes it a federal crime for a noncitizen to reenter or be found in the United States after having been deported or removed.
  • Subsection (b) imposes higher penalties for those who reenter after a prior conviction for certain felonies, especially aggravated felonies or crimes of violence.
  • The Sentencing Guidelines then provide a framework to determine a recommended range, which may be adjusted based on criminal history and the nature of prior convictions, as occurred in Mora’s case (the 4‑level enhancement for felony child abuse).

VI. Conclusion

United States v. Mora confirms and illustrates several important principles in federal sentencing, particularly in the context of illegal-reentry cases:

  • Upward variances are permissible and often appropriate when a defendant has a record of repeated illegal reentries coupled with a significant criminal history, even if some of that history is old.
  • Priors already accounted for in the Guidelines may still justify a variance under § 3553(a), especially when they show persistent disregard for the law and underscore the need for deterrence and public protection.
  • District courts must give individualized explanations for variances, but those explanations can be concise as long as they clearly connect specific facts to the statutory factors and explain why the case differs from the “mine-run.”
  • Appellate review is highly deferential: under the abuse-of-discretion standard, the Tenth Circuit will uphold even material variances when the district court’s reasoning is grounded in the record and linked to § 3553(a).

Although nonprecedential, Mora will serve as a useful, persuasive blueprint for both district courts and litigants in the Tenth Circuit when addressing upward variances in illegal-reentry cases, reinforcing the discretion of sentencing judges to respond firmly to patterns of repeated immigration and criminal violations.

Case Details

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

Comments