United States v. Zamora-Guerra: No Waiver from Alternative Sentencing Cap Requests; JSIN Statistics Do Not Undermine a Well-Explained Upward Variance

Court: Court of Appeals for the Tenth Circuit
Date: March 11, 2026
Case: United States v. Zamora-Guerra, No. 24-2173

1. Introduction

United States v. Zamora-Guerra addresses two recurring issues in federal sentencing appeals: (1) whether a defendant “waives” (or “invites”) a substantive-reasonableness challenge by urging a lower sentence but alternatively asking the district court not to exceed a specified higher cap; and (2) the role of Judiciary Sentencing Information (“JSIN”) statistics in assessing claims of unwarranted disparity under 18 U.S.C. § 3553(a), especially when such statistics are raised for the first time on appeal.

The defendant, Gustavo Zamora-Guerra, pleaded guilty to illegal reentry of a removed alien under 8 U.S.C. §§ 1326(a) and (b). Although the Guidelines advised a range the district court understood as 8–14 months (without the fast-track benefit), the court imposed an upward-variant sentence of 24 months based primarily on repeated reentries, deterrence, and violent conduct in the defendant’s past (including a conviction for cruelty to animals). The Tenth Circuit affirmed, holding the sentence substantively reasonable and rejecting the government’s waiver theory.

2. Summary of the Opinion

Holdings (core):

  • A defendant does not waive or invite an appellate substantive-reasonableness challenge merely by proposing a lower sentence while alternatively requesting that the court not exceed a higher cap; United States v. Mancera-Perez was distinguished because, there, the defendant did not seek a shorter sentence and affirmatively agreed the sentence was reasonable.
  • The 24-month upward-variant sentence was substantively reasonable under abuse-of-discretion review because the district court made an individualized assessment, thoroughly addressed § 3553(a), and gave “compelling reasons” tied to deterrence, recidivism, seriousness, and public protection.
  • Arguments that effectively target procedural reasonableness (e.g., guideline-calculation sequencing, “double counting” objections framed as guideline-accounting errors) were deemed waived where not preserved below and not argued on appeal under plain-error standards (relying on United States v. Bradley and United States v. Leffler).
  • JSIN statistics first raised on appeal do not carry the day where the district court provided an adequate explanation; “bare national statistics” without meaningful comparators do not establish unwarranted disparity in the face of a well-justified variance (drawing from United States v. Guevara-Lopez, United States v. Doty, United States v. Valdez, and United States v. Garcia).

The panel emphasized that appellate review asks not whether it would impose the same sentence, but whether the district court stayed within permissible bounds of discretion while reasonably applying the § 3553(a) factors, consistent with Gall v. United States.

3. Analysis

3.1. Precedents Cited

Framework for substantive-reasonableness review and variances

  • Gall v. United States, 552 U.S. 38 (2007): The opinion anchors the standard of review—abuse of discretion, “totality of the circumstances,” deference to the district court’s § 3553(a) balancing, and no presumption of unreasonableness for outside-Guidelines sentences. Zamora-Guerra uses Gall as the baseline for upholding a significant upward variance where the district court thoroughly explained its rationale.
  • United States v. Valdez, 128 F.4th 1314 (10th Cir. 2025) (citing United States v. Pena, 963 F.3d 1016 (10th Cir. 2020)): The panel treats Valdez as a central recent synthesis of substantive reasonableness: district courts may vary; they must ensure justification is “sufficiently compelling” for the degree of variance; appellate courts ask whether the “proffered rationale, on aggregate, justifies the magnitude of the sentence.” Zamora-Guerra places the 24-month sentence within the acceptable range of prior upheld “more-than-double-the-guidelines” variances.
  • United States v. Pena, 963 F.3d 1016 (10th Cir. 2020): Quoted through Valdez for deference and the requirement that district courts “maintain the connection” between conduct and sentence. The court uses Pena to frame the “compelling reasons” inquiry and to validate a detailed § 3553(a) explanation.

Considering facts already reflected in the Guidelines (“double counting” concerns)

  • United States v. Lucero, 130 F.4th 877 (10th Cir. 2025) (quoting United States v. Barnes, 890 F.3d 910 (10th Cir. 2018)): Lucero is invoked for the proposition that district courts may consider particular facts—such as criminal history and relevant conduct—even when the Guidelines already account for them. This directly supports the panel’s rejection of arguments that the court’s reliance on repeated reentry and violent history was improper because enhancements or criminal-history scoring already captured those facts.
  • United States v. Barnes, 890 F.3d 910 (10th Cir. 2018): Cited for the broad discretion to use “already-accounted-for” facts as part of a § 3553(a) variance analysis.
  • United States v. Alapizco-Valenzuela, 546 F.3d 1208 (10th Cir. 2008) and United States v. Lopez-Flores, 444 F.3d 1218 (10th Cir. 2006): Used to classify certain objections (complaints about using the same facts for enhancements and variances) as procedural challenges and to channel unpreserved procedural claims into plain-error review—here ultimately “waived” due to failure to argue plain error on appeal.

Weighting specific prior violent conduct under § 3553(a)

  • United States v. Vazquez-Garcia, 130 F.4th 891 (10th Cir. 2025): The opinion relies on Vazquez-Garcia to validate a district court’s emphasis on prior violent conduct when it is explained as relevant to multiple § 3553(a) factors. Here, the cruelty-to-animals conviction and surrounding conduct were treated as bearing on seriousness, respect for law, deterrence, and public safety.
  • United States v. Guerrero-Carreon, 566 F. App'x 643 (10th Cir. 2014): Quoted via Vazquez-Garcia for the proposition that illegal entry by an alien who has committed a violent felony is a serious crime—supporting the view that violent history can heighten the seriousness of reentry.
  • United States v. Lee, 974 F.3d 670 (6th Cir. 2020): The defendant’s primary out-of-circuit support. The panel distinguishes Lee, concluding that, unlike the gap and mismatch in Lee, the violent conduct at issue here was relevant to the seriousness of the reentry offense and the defendant’s characteristics, and was not too remote.

Illegal reentry and recidivism-based variances

  • United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025): Provides a close analogue: repeated unlawful reentry plus violent history can justify a major upward variance, and appellate review focuses on the “totality of the circumstances” as they bear on § 3553(a). Zamora-Guerra tracks that approach.

Statistics, disparity, and adequacy of explanation (JSIN)

  • United States v. Guevara-Lopez, 147 F.4th 1174 (10th Cir. 2025): A pivotal comparator. Guevara-Lopez held that a failure to adequately explain an above-Guidelines sentence can be an abuse of discretion and that JSIN statistics may “heighten” concern in that circumstance. Zamora-Guerra uses Guevara-Lopez to draw a line: where the explanation is detailed and individualized, bare statistics do not undermine the sentence.
  • United States v. Doty, 150 F.4th 1351 (10th Cir. 2025): Reinforces that national averages ordinarily do not show whether defendants are “similarly situated,” and that a district court’s reasoned explanation can neutralize disparity arguments. Also supports the principle that a district court cannot abuse discretion for failing to consider facts not presented below.
  • United States v. Naranjo-Aguilar, 154 F.4th 1251 (10th Cir. 2025): Reiterates that national averages “don’t ordinarily shed light” on substantive reasonableness, while acknowledging limited circumstances where such data might matter.
  • United States v. Garcia, 946 F.3d 1191 (10th Cir. 2020): Supplies the key skepticism about “bare national statistics” lacking specific comparators.
  • United States v. Kelly, 359 F.3d 1302 (10th Cir. 2004): Used (via Guevara-Lopez) for the idea that statistics without individualized comparison do not defeat an otherwise adequate explanation.
  • Stone v. High Mountain Mining Co., 89 F.4th 1246 (10th Cir. 2024): Supports taking judicial notice of publicly available information (invoked in the JSIN discussion).
  • United States v. Faunce, 66 F.4th 1244 (10th Cir. 2023): Quoted in Doty and referenced here for the principle that the focus is what was presented below.

Waiver/invited error and preservation rules

  • United States v. Mancera-Perez, 505 F.3d 1054 (10th Cir. 2007): Distinguished. The government argued “invited sentence”/waiver because the defendant asked for a cap of 24 months. The panel holds that requesting a lower sentence (12–18 months) while alternatively asking not to exceed 24 months does not invite the challenged sentence; Mancera-Perez applies when a defendant does not seek a shorter sentence and agrees the imposed sentence is reasonable.
  • United States v. Bradley, 97 F.4th 1214 (10th Cir. 2024) (quoting United States v. Leffler, 942 F.3d 1192 (10th Cir. 2019)): Establishes the Tenth Circuit’s strong waiver rule: if an issue is unpreserved and the appellant fails to argue plain error on appeal, the court ordinarily deems the issue waived and declines to review.
  • United States v. Cookson, 922 F.3d 1079 (10th Cir. 2019): Cited (via Doty) for the principle that § 3553(a) factors do not necessarily carry equal weight—supporting the district court’s emphasis on deterrence and seriousness.

3.2. Legal Reasoning

A. No waiver/invited error from an “alternative cap” request

The opinion clarifies a practical appellate-preservation question. Defendants often argue for a preferred sentence while also proposing a fallback ceiling if the court is inclined to go higher. The government attempted to treat the fallback ceiling as an invitation to the very sentence imposed, thereby extinguishing appellate review.

The panel rejects that view: the defendant “also argued for a lower sentence” and never conceded that 24 months was reasonable. That distinction matters because “invited error” and waiver are premised on a party’s affirmative adoption of the challenged outcome, not on strategic contingency planning.

The court’s limiting principle is anchored in United States v. Mancera-Perez: waiver occurred there because the defendant did not ask for a shorter sentence and agreed the sentence was reasonable. By contrast, a defendant who meaningfully presses for a lower sentence preserves a substantive-reasonableness claim even if he requests an upper bound in the alternative.

B. Substantive reasonableness upheld: individualized § 3553(a) explanation supports a large variance

On the merits, the Tenth Circuit applies the Gall/Valdez framework. The question is whether the district court’s rationale “on aggregate, justifies the magnitude of the sentence” and stays within the bounds of permissible choice, not whether the appellate panel would have imposed the same sentence.

The district court’s record was unusually detailed: it expressly addressed all § 3553(a) factors, the Guidelines range(s) (with and without fast-track), the defendant’s arguments, the age of prior convictions, and the need to avoid unwarranted disparity—while making an explicit finding that any disparity would be warranted by the defendant’s repeated law violations and “extreme cruelty to animals.”

Several aspects of the reasoning are notable:

  • Recidivism and deterrence as principal drivers: The district court found that prior convictions and even a previous 21-month sentence had not deterred the defendant. Under § 3553(a)(2)(B), the court treated a longer sentence as necessary to increase the deterrent effect for this individual and to deter others.
  • Seriousness and public protection: The court did not treat the illegal-reentry conduct as “run of the mill” given the fourth reentry and prior felony record. It viewed violent conduct (including the animal-cruelty episode) as relevant to seriousness and to protecting the public under § 3553(a)(2)(C).
  • Guidelines as advisory, not dispositive: Consistent with Valdez, the panel reiterates that sentencing is not one-size-fits-all and the Guidelines do not bar district courts from weighing individualized circumstances heavily.

C. Procedural arguments reframed as substantive ones—and then waived

The opinion repeatedly distinguishes substantive reasonableness (length in light of all circumstances) from procedural reasonableness (how the sentence was calculated and explained). It treats certain defense points as procedural in substance:

  • The “cart-before-the-horse” claim (sentence announced before the Guideline range was stated) was viewed as a procedural-adequacy issue; because it was not preserved and no plain-error argument was made on appeal, it was waived under United States v. Bradley and United States v. Leffler.
  • The claim that the district court improperly used facts already accounted for by the Guidelines (a “double counting” style objection) was also treated as procedural under United States v. Alapizco-Valenzuela. It too was waived for failure to pursue plain-error review.

Importantly, even where the panel briefly addresses the substance, it reiterates that district courts may rely on “already-accounted-for” facts when applying § 3553(a), citing United States v. Valdez and United States v. Barnes.

D. Disparity and JSIN data: adequacy of explanation is the fulcrum

The defendant’s “true outlier” argument relied on JSIN data introduced for the first time on appeal. The panel notes its discretion to take judicial notice of such publicly available data (citing Stone v. High Mountain Mining Co.), but emphasizes a practical limitation: a district court cannot abuse discretion by failing to consider evidence not presented to it (quoting United States v. Doty and United States v. Faunce).

Substantively, the panel uses the Guevara-Lopez framework: JSIN statistics can “heighten” concerns when the district court’s explanation is inadequate. Where the explanation is robust and individualized, “bare national statistics” without meaningful comparators do not establish unwarranted disparity, consistent with United States v. Garcia, United States v. Doty, and United States v. Naranjo-Aguilar.

3.3. Impact

  • Preservation and waiver doctrine in sentencing appeals: The decision provides a defendant-friendly clarification on waiver/invited error: proposing an alternative sentencing cap does not, by itself, waive substantive-reasonableness review when a lower sentence is actively sought. This gives defense counsel room to make pragmatic fallback requests without sacrificing appellate rights.
  • Upward variances in illegal reentry cases: The case strengthens the Tenth Circuit trend (as described through Valdez, Cortez, and Vazquez-Garcia) of sustaining substantial upward variances where the district court ties recidivism, deterrence, seriousness, and public protection to an individualized record.
  • Violent history and “seriousness” of reentry: By treating the cruelty-to-animals conduct as relevant to the seriousness of illegal reentry, the opinion signals that district courts may connect certain prior violent conduct—even if not an element of reentry—to the gravity of continued unlawful presence and risk to the community.
  • JSIN and disparity arguments: The opinion reinforces that JSIN data is not a substitute for individualized comparators and will rarely overcome a thoroughly explained sentence. Practically, defendants seeking to leverage JSIN should present it at sentencing and pair it with specific, “similarly situated” comparator cases to fit within § 3553(a)(6)’s framework.
  • Appellate posture matters: The court’s strict application of Bradley/Leffler signals that appellate counsel must explicitly argue plain error for unpreserved procedural claims or expect waiver.

4. Complex Concepts Simplified

  • Substantive reasonableness: Whether the length of the sentence makes sense given the case and the purposes of sentencing in 18 U.S.C. § 3553(a). The appellate court asks if the sentence is “arbitrary” or “manifestly unreasonable,” not whether it would have chosen differently.
  • Procedural reasonableness: Whether the district court followed correct steps—properly calculated the Guidelines range, treated the Guidelines as advisory, considered § 3553(a), and adequately explained the sentence.
  • Variance: A sentence above or below the advisory Guidelines range based on § 3553(a) factors. (Different from a “departure,” which is a Guidelines-based adjustment.)
  • Fast-track plea / 11(c)(1)(C) agreement: A negotiated plea process (often in immigration cases) that may reduce offense level and propose a specific sentence. If the district court rejects an 11(c)(1)(C) agreement, the defendant typically may withdraw the plea—here, the defendant chose to proceed.
  • Waiver vs. forfeiture vs. plain error:
    • Forfeiture is failing to raise an issue in time; it may still be reviewed for “plain error.”
    • Waiver is giving up an issue (often by intent or by failing to argue plain error on appeal in the Tenth Circuit); waived issues are not reviewed.
    • Plain error is a demanding appellate standard for unpreserved issues.
  • JSIN statistics: Judiciary sentencing data summaries. Helpful for broad context, but often insufficient to prove unwarranted disparity unless tied to truly comparable defendants and used alongside an analysis of what makes defendants “similarly situated.”
  • Unwarranted sentencing disparity (18 U.S.C. § 3553(a)(6)): The goal is consistency among defendants with similar records convicted of similar conduct. A disparity can be “warranted” when differences in history, conduct, or risk justify different sentences.

5. Conclusion

United States v. Zamora-Guerra reinforces that substantive-reasonableness review turns on the district court’s individualized, § 3553(a)-grounded explanation and that substantial upward variances can be affirmed when supported by a cohesive rationale focused on deterrence, recidivism, seriousness, and public protection. The decision also clarifies that a defendant does not waive appellate review by proposing a lower sentence while requesting an alternative upper limit.

Finally, the opinion cements a pragmatic lesson for future litigants: JSIN statistics and disparity arguments are most effective when raised at sentencing and coupled with meaningful comparators; when offered only on appeal—and when the sentencing court’s explanation is already detailed—they rarely undermine the discretionary judgment upheld under Gall and the Tenth Circuit’s 2025 substantive-reasonableness line of cases.