Unobjected-to PSR Allegations as Sentencing Facts and “Heartland” Limits Confined to Guideline Departures

1. Introduction

In United States v. Vazquez-Garcia (10th Cir. Mar. 12, 2025), the Tenth Circuit affirmed a 48-month sentence for illegal reentry under 8 U.S.C. § 1326, representing an 18-month upward variance from the advisory 24–30 month Guidelines range. The defendant, Ismael Vazquez-Garcia, argued the sentence was (i) procedurally unreasonable because the district court relied on allegedly unreliable factual allegations in the presentence report (“PSR”) about the conduct underlying a prior Florida child-abuse conviction, and (ii) procedurally unreasonable because the court “double-counted” criminal history already captured by the Guidelines. He also argued the sentence was substantively unreasonable because the court gave “inordinate weight” to the child-abuse conduct.

The decision is significant for sentencing practice because it underscores two operational rules: (1) when PSR allegations are not specifically disputed, Rule 32(i) authorizes a court to adopt them as fact findings without an independent “reliability” hearing; and (2) the “heartland” inquiry constrains Guidelines departures, not § 3553(a) variances.

2. Summary of the Opinion

The Tenth Circuit held that Mr. Vazquez-Garcia failed to show procedural error (under conceded plain error review) and failed to show substantive unreasonableness (under abuse of discretion review).

  • Procedural reasonableness:
    • The district court did not err by adopting and relying on PSR allegations about the child-abuse offense because the defendant made no factual objections; under Fed. R. Crim. P. 32(i)(3)(A), undisputed PSR portions may be accepted as findings of fact.
    • The district court did not err by varying upward based on criminal history; a “heartland” analysis is required for departures, not variances, and the court may consider factors already reflected in the Guidelines.
  • Substantive reasonableness: The upward variance was upheld because the conduct underlying the child-abuse conviction was relevant to multiple § 3553(a) factors—particularly the seriousness of illegal reentry after a serious violent crime, deterrence given the quick return after removal, and protection of the public—distinguishing cases where courts effectively resentenced defendants for unrelated misconduct.

3. Analysis

A. Precedents Cited

1) The procedural framework: reasonableness review and plain error

  • United States v. Jackson supplied the two-step structure for appellate sentencing review (procedural, then substantive).
  • United States v. Ruby established that unpreserved procedural objections are reviewed for plain error, and it also framed due process complaints about unreliable sentencing information as procedural-reasonableness challenges.
  • United States v. Magallanez provided the four-part plain-error test (error, plainness, effect on substantial rights, and discretionary correction).

2) Due process, Rule 32(i), and PSR reliability

  • United States v. Strayer articulated the due process right to be sentenced on accurate information, while emphasizing that Rule 32 supplies the mechanism to challenge PSR inaccuracies.
  • United States v. McDonald was central: it described Rule 32(i) as imposing an “affirmative duty” on defendants to show PSR information is unreliable and to articulate why facts are untrue/inaccurate—i.e., the defendant must assert falsity.
  • The panel reinforced this line with cases treating unobjected-to PSR facts as admitted: United States v. Smith, United States v. Hooks, and United States v. Cereceres-Zavala.
  • The court addressed the defendant’s reliance on cases involving contested PSR facts or reliability disputes: United States v. Padilla (later “disapproved by” United States v. McDonald), United States v. Fennell, and United States v. Beaulieu. The opinion characterized these authorities as consistent with the premise that a defendant must object to trigger reliability scrutiny or a hearing.
  • United States v. Worku supported construing due process reliability arguments as procedural reasonableness challenges.
  • United States v. Martinez-Candejas was invoked to reject importing the ACCA’s categorical approach broadly into this sentencing context.

3) Departure vs. variance, and the “heartland” concept

  • The defendant’s “heartland” argument was anchored in United States v. Marquez-Gallegos, which discusses when departures are permissible if a factor is present to an unusual degree.
  • The panel relied on United States v. Martinez-Barragan for the proposition that departures and variances are analytically distinct and that heartland analysis is required only for departures.
  • Irizarry v. United States defined “departure” as a Guidelines term of art and contrasted it with variances grounded in § 3553(a).
  • United States v. Beltran was used to highlight the “stricter standard for a departure” relative to a variance.
  • United States v. Gallardo-Medina underscored that even in heartland cases, courts retain discretion to vary based on § 3553(a).
  • Kimbrough v. United States and Rita v. United States informed the degree-of-deference framework and the idea that outside-Guidelines sentences may receive “greatest respect” when the case is outside the heartland, while making clear that a variance is not procedurally barred absent an explicit heartland finding.
  • United States v. Barnes was pivotal for rejecting a “double counting” theory: district courts may consider facts under § 3553(a) even when already accounted for in the advisory range.

4) Substantive reasonableness, major variances, and limits on punishing “other crimes”

  • United States v. Crosby supplied the abuse-of-discretion framing (“arbitrary, capricious, whimsical, or manifestly unreasonable”).
  • Gall v. United States established that major variances require more significant justification and that appellate courts give “due deference” to district courts’ holistic § 3553(a) judgments.
  • United States v. Pinson cautioned against rubber-stamp review and, together with United States v. Allen, delineated a boundary: courts may not effectively sentence a defendant as if he committed a wholly different, more serious crime.
  • Blakely v. Washington was cited through United States v. Allen to illustrate the “absurd” scenario of sentencing for murder when convicted only of firearm possession—used here as an analogy for impermissible sentencing based primarily on unrelated misconduct.
  • The panel discussed United States v. Lee (6th Cir.) as an example of reversing a variance where prior sexual misconduct was remote and lacked a meaningful relationship to the offense of conviction and likelihood of reoffending.
  • United States v. Guerrero-Carreon supported the proposition that illegal reentry by an alien who has committed a violent felony is serious—helping connect the prior child-abuse conduct to the seriousness of the reentry offense.

B. Legal Reasoning

1) Why the PSR allegations were fair game: Rule 32(i) as the due process mechanism

The core procedural holding is straightforward: the defendant did not dispute the PSR’s detailed account of the child-abuse conduct, even after multiple invitations (sentencing memorandum, counsel’s confirmation at hearing, and the court’s questioning). Under Fed. R. Crim. P. 32(i)(3)(A), the district court could accept undisputed PSR portions as findings of fact.

Importantly, the panel treated due process not as a free-floating requirement that the judge independently verify reliability in the absence of an objection, but as a right satisfied by notice and an opportunity to respond—echoing United States v. Beaulieu. In effect, the opinion reinforces an allocation of burdens: defendants must trigger judicial fact-finding obligations by making “specific allegations of factual inaccuracy,” and without that trigger, appellate courts will not fault district judges for relying on PSR narratives at sentencing.

2) Why the “heartland” argument failed: variances are not departures

The defendant argued that because the Guidelines already incorporated his criminal history (including a 10-level enhancement and criminal history points), the court could vary upward only by explaining why the case fell outside the “heartland.” The panel rejected this as a category mistake. Citing United States v. Martinez-Barragan and Irizarry v. United States, it held that “heartland” limitations are tied to the Guidelines’ departure framework, not to a § 3553(a) variance.

The opinion further anchored the point in statutory sentencing: § 3553(a)(1) requires consideration of the defendant’s “history and characteristics,” and under United States v. Barnes courts may consider facts already reflected in the Guidelines when deciding whether the statutory factors warrant a different sentence.

3) Why the heavy emphasis on child-abuse conduct was not “punishment for another crime”

The substantive challenge required the court to determine whether the 48-month sentence was “manifestly unreasonable” given the record and § 3553(a). The panel acknowledged the variance was “major” under Gall v. United States (18 months above the top of the range; even farther above average sentences for similarly situated defendants), so it demanded significant justification.

The opinion’s key move was to distinguish impermissible “sentencing for other crimes” (as in United States v. Allen and United States v. Lee) from permissible reliance on prior conduct meaningfully tied to statutory sentencing purposes. The panel identified multiple links:

  • Recency and seriousness: the child-abuse conduct was not remote (about five years before the reentry), unlike the fifteen-year gap in United States v. Lee.
  • Seriousness of the reentry offense: illegal reentry following a violent felony can be treated as more serious, consistent with United States v. Guerrero-Carreon.
  • Protection of the public and characteristics: the court relied not only on the prior conviction but also on the defendant’s perceived minimization/denial and lack of concrete rehabilitative steps, supporting heightened concerns under § 3553(a)(2)(C) and § 3553(a)(1).
  • Deterrence: the quick return less than a year after removal supported the need for deterrence under § 3553(a)(2)(B).

On that reasoning, the panel concluded the district court’s focus on the child-abuse conduct was not “inordinate” in a way that made the sentence arbitrary or “manifestly unreasonable.”

C. Impact

  • Sentencing practice (PSR objections): The decision reinforces a high-stakes procedural reality: if the defense does not make a specific factual objection to PSR allegations, those allegations may become the court’s operative sentencing facts. The burden to force reliability scrutiny lies with the defendant, and failure to object can be outcome-determinative—especially where a district judge is contemplating an upward variance.
  • Variance doctrine: The opinion strengthens the Tenth Circuit’s already clear separation of departures and variances. Litigants who argue “heartland” must tie it to departure doctrine; otherwise, courts may treat the argument as inapposite when the district court explicitly varies under § 3553(a).
  • Substantive-reasonableness boundaries: The case supplies a roadmap for when prior sexual or violent conduct can justify a major variance without becoming an Allen-style impermissible resentencing: recency, offense-related relevance (seriousness of illegal reentry after violent felony), and a record-based connection to deterrence/protection-of-the-public are key.
  • Defense strategy: Even when counsel does not seek to relitigate a prior conviction, counsel must consider objecting to narrative descriptions of dismissed counts or alleged conduct (or at minimum demanding a reliability basis), because those narratives can materially drive § 3553(a) analysis and variance magnitude.

4. Complex Concepts Simplified

  • PSR (Presentence Report): A report prepared for sentencing that includes guideline calculations and background facts. Courts commonly rely on it.
  • Fed. R. Crim. P. 32(i)(3)(A) and (B):
    • (A) allows the judge to accept undisputed PSR portions as fact.
    • (B) requires the judge to resolve disputed factual matters (or declare them irrelevant to sentencing).
  • Procedural vs. substantive reasonableness:
    • Procedural asks whether the court used correct methods (proper calculation, proper fact-finding, adequate explanation).
    • Substantive asks whether the sentence length is reasonable given § 3553(a).
  • Plain error: A demanding appellate standard applied when the defendant did not object in the district court; the defendant must show an obvious error that affected substantial rights and seriously affects the integrity of the proceeding.
  • Departure vs. variance:
    • A departure is a non-Guidelines sentence imposed using the Guidelines’ own departure provisions (where “heartland” talk traditionally belongs).
    • A variance is a non-Guidelines sentence imposed because the statutory factors in § 3553(a) justify it.
  • “Heartland”: The typical set of cases a Guideline is designed to cover. Courts often require “unusual” facts to justify a departure from that typical range.
  • “Minimal indicia of reliability”: A concept used when courts evaluate whether sentencing information is reliable enough to use; this case emphasizes that, absent a specific objection, the court may adopt PSR facts under Rule 32(i) without a separate reliability adjudication.

5. Conclusion

United States v. Vazquez-Garcia cements two practical sentencing lessons in the Tenth Circuit: (1) unobjected-to PSR factual allegations—including narrative descriptions of underlying conduct—may be adopted as sentencing facts under Rule 32(i), and (2) defendants cannot demand a “heartland” justification when the district court imposes a variance rather than a departure. Substantively, the case illustrates how a major upward variance can be upheld when prior violent/sexual misconduct is recent and is tied to § 3553(a) considerations such as seriousness, deterrence, and protection of the public—without crossing into impermissible punishment “as if” for a different crime.