Unobjected-to PSR Allegations May Be Adopted as Facts and Support an Upward Variance Under § 3553(a)

I. 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, an 18-month upward variance from the advisory Guidelines range of 24–30 months.

The key dispute arose from the district court’s heavy reliance at sentencing on factual allegations in the presentence report (PSR) describing conduct underlying a prior Florida child-abuse conviction (involving allegations of sexual assault of a 13-year-old stepdaughter). The defendant had received a ten-level enhancement under U.S.S.G. § 2L1.2 based on that conviction and did not object to the PSR’s factual narrative.

On appeal, the defendant argued (1) procedural unreasonableness on due-process grounds because the district court relied on “mere allegations” lacking reliability, and because the court varied upward based on criminal history already captured by the Guidelines; and (2) substantive unreasonableness because the court allegedly gave inordinate weight to the prior child-abuse conduct.

II. Summary of the Opinion

The Tenth Circuit affirmed. It held:

  • No procedural error occurred when the district court adopted the PSR’s underlying-conduct allegations, because Fed. R. Crim. P. 32(i)(3)(A) permits courts to accept undisputed PSR portions as fact, and the defendant repeatedly confirmed he had no objections.
  • The district court also did not procedurally err by considering the defendant’s criminal history to justify a variance, even if that history informed the Guidelines calculation; a “heartland” analysis is required for departures, not variances.
  • The sentence was not substantively unreasonable. The district court permissibly weighed the prior child-abuse conduct because it was relevant to multiple § 3553(a) factors (seriousness of illegal reentry following a violent felony, history/characteristics, deterrence, and protection of the public), and the case was distinguishable from decisions reversing sentences that effectively punished defendants for unrelated, uncharged misconduct.

III. Analysis

A. Precedents Cited

1. Framework for reasonableness review

  • United States v. Jackson, 82 F.4th 943 (10th Cir. 2023): The court relied on Jackson for the two-step structure of appellate sentencing review—procedural then substantive.
  • United States v. Ruby, 706 F.3d 1221 (10th Cir. 2013) and United States v. Worku, 800 F.3d 1195 (10th Cir. 2015): The panel treated the defendant’s due-process claim as, in substance, a procedural-reasonableness challenge to a sentence allegedly based on erroneous facts; and used Ruby for the rule that unpreserved procedural objections are reviewed for plain error.
  • United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005): Supplied the four-part plain-error standard and anchored why the defendant’s procedural claims failed at step one (no error).

2. Due process, PSR factfinding, and Rule 32

  • United States v. Strayer, 846 F.2d 1262 (10th Cir. 1988): Recognized the due-process right to be sentenced on accurate information, and tied that protection to Rule 32 procedures.
  • United States v. McDonald, 43 F.4th 1090 (10th Cir. 2022): Central to the holding: Rule 32 places an affirmative duty on defendants to show unreliability and to articulate why PSR facts are untrue/inaccurate—i.e., the defendant must assert falsity. Without a specific objection, the court may accept PSR facts.
  • United States v. Smith, 815 F.3d 671 (10th Cir. 2016), United States v. Hooks, 551 F.3d 1205 (10th Cir. 2009), and United States v. Cereceres-Zavala, 499 F.3d 1211 (10th Cir. 2007): These cases reinforce the practical consequence of Rule 32: failure to object to PSR facts deems them admitted, freeing the sentencing court to rely on them.
  • United States v. Beaulieu, 893 F.2d 1177 (10th Cir. 1990): Used to answer the constitutional attack: due process is satisfied when the defendant has notice and an opportunity to rebut or explain information used at sentencing.
  • United States v. Padilla, 793 F. App'x 749 (10th Cir. 2019) (disapproved by United States v. McDonald) and United States v. Fennell, 65 F.3d 812 (10th Cir. 1995): Cited to show the defendant’s own authorities presupposed objections were made; they did not support a rule requiring independent reliability findings absent an objection.

3. Departures vs. variances; the “heartland” concept

  • United States v. Marquez-Gallegos, 217 F.3d 1267 (10th Cir. 2000): The defendant invoked Marquez-Gallegos’s “heartland” language, but the panel held it inapplicable because it concerns departures.
  • United States v. Martinez-Barragan, 545 F.3d 894 (10th Cir. 2008): The key corrective: departures and variances are analytically distinct, and heartland analysis is required for departures—not variances.
  • Irizarry v. United States, 553 U.S. 708 (2008) and United States v. Beltran, 571 F.3d 1013 (10th Cir. 2009): Clarified that a variance flows from case-specific application of § 3553(a), unlike a departure’s Guidelines-based framework.
  • United States v. Gallardo-Medina, 769 F. App'x 546 (10th Cir. 2019): Supported the proposition that even a “mine-run”/heartland case does not strip the court of discretion to vary based on § 3553(a).
  • Kimbrough v. United States, 552 U.S. 85 (2007) and Rita v. United States, 551 U.S. 338 (2007): The panel acknowledged that “outside the heartland” reasoning may attract deference, but did not treat it as a procedural prerequisite for variances.

4. Using already-accounted-for facts, and substantive review of variances

  • United States v. Barnes, 890 F.3d 910 (10th Cir. 2018): Reinforced that district courts may consider facts under § 3553(a) even if those facts are already reflected in the advisory Guidelines range.
  • United States v. Crosby, 119 F.4th 1239 (10th Cir. 2024): Provided the substantive-reasonableness standard (“arbitrary, capricious, whimsical, or manifestly unreasonable”) and totality-of-circumstances approach.
  • Gall v. United States, 552 U.S. 38 (2007): Supplied the core rule that major variances require more significant justification, but appellate courts must still give “due deference” to the district court’s § 3553(a) balancing.
  • United States v. Pinson, 542 F.3d 822 (10th Cir. 2008): Used for two related points: reasonableness review is not a “rubber stamp,” and courts may rely on dangerous past conduct as probative of the defendant’s characteristics—while also respecting Allen’s limit against sentencing as if for a different, more serious crime.

5. Limits on punishing for unrelated conduct; distinguishing cases

  • United States v. Allen, 488 F.3d 1244 (10th Cir. 2007): The defense’s best authority. Allen reversed a major upward variance where the court effectively punished the defendant for uncharged, unrelated sexual-abuse and murder-solicitation conduct rather than the drug offense of conviction.
  • Blakely v. Washington, 542 U.S. 296 (2004): Allen drew on Blakely’s “absurd” hypothetical to illustrate the constitutional and structural concern with punishing a defendant as if convicted of a different crime. Vazquez-Garcia distinguished that problem rather than rejecting it.
  • United States v. Lee, 974 F.3d 670 (6th Cir. 2020): The panel used Lee as an example where a variance was reversed because the prior “troubling” offense was remote and lacked a meaningful relationship to the offense of conviction and the asserted risk of reoffending.
  • United States v. Guerrero-Carreon, 556 F. App'x 643 (10th Cir. 2014): Supported the court’s point that illegal reentry following a violent felony is itself a serious form of illegal reentry, making the violent prior more germane to seriousness and public-protection analysis.
  • United States v. Martinez-Candejas, 347 F.3d 853 (10th Cir. 2003): Cited to reject the defendant’s attempt to import categorical-approach constraints broadly into non-ACCA sentencing enhancements and factfinding.

B. Legal Reasoning

1. Procedural reasonableness: Rule 32 as the due-process vehicle

The opinion’s procedural core is straightforward: sentencing due process is protected through the Rule 32 mechanism. Under Fed. R. Crim. P. 32(i)(3)(A), a district court may accept any undisputed portion of the PSR as a finding of fact. Under Rule 32(i)(3)(B), fact disputes must be resolved only when the defendant raises them.

The defendant tried to reframe the issue as one of inherent unreliability—arguing the court had a duty to demand “minimal indicia of reliability” even absent an objection. The panel rejected that move as contrary to Rule 32 and Tenth Circuit precedent (especially McDonald), emphasizing that defendants must specifically identify false or inaccurate PSR assertions.

On the record, the defendant repeatedly disclaimed objections (in writing and at hearing). Even when questioned at length, he did not controvert specific PSR facts; instead he minimized, denied intent, and claimed memory loss. That posture did not trigger Rule 32 factfinding duties, so there was no error—hence no plain error.

2. Procedural reasonableness: “heartland” analysis not required for variances

The defendant’s second procedural claim rested on the idea that because the Guidelines already account for criminal history, a court may deviate only if the case is outside the “heartland.” The panel treated that as a category error: heartland analysis is tied to departures, not variances.

For variances, § 3553(a) independently requires consideration of the defendant’s “history and characteristics.” Citing Barnes, the panel reiterated that courts may weigh facts already captured by the Guidelines to decide whether the advisory range is sufficient but not greater than necessary.

3. Substantive reasonableness: when prior violent conduct may justify a major upward variance

The panel acknowledged the variance was “major” (18 months above the top of the range), triggering the Gall principle that stronger justification is needed. It then upheld the sentence because the prior child-abuse conduct was not treated as a freestanding, unrelated offense used to “resentence” the defendant.

The district court connected the prior conduct to multiple § 3553(a) purposes: (i) seriousness of illegal reentry following a recent violent felony (supported by Guerrero-Carreon), (ii) history/characteristics, (iii) deterrence given the rapid reentry after removal, and (iv) public protection.

The panel distinguished Allen and Lee by focusing on the relationship and recency: the child-abuse conduct was about five years old (not remote) and bore on risk, seriousness, and public-safety concerns in this illegal reentry context. Additionally, the defendant’s equivocation and minimization in allocution could reasonably support the court’s view that the risk and character concerns remained live.

C. Impact

  • Defense practice and preservation: The case underscores that failing to object to PSR factual narratives—especially underlying-conduct narratives of prior convictions— will likely allow the district court to treat those allegations as fact under Rule 32. Defendants who want reliability testing must make specific objections and, where appropriate, request an evidentiary hearing.
  • Sentencing courts’ discretion after Booker: The decision strengthens the principle that courts may impose variances based on § 3553(a) even when the Guidelines already incorporate the same general factor (e.g., criminal history), so long as the court provides a case-specific explanation.
  • Limits remain, but are fact-bound: The opinion does not dilute Allen’s warning against sentencing a defendant as if convicted of a different and more serious crime. Instead, it suggests that prior violent conduct can justify substantial variances when it meaningfully relates to § 3553(a) purposes in the current case (seriousness, deterrence, and protection of the public), and is not remote.
  • Illegal reentry sentencing: The ruling provides prosecutors and courts a clearer appellate-safe pathway for upward variances where the defendant’s recent record includes violence (especially against vulnerable victims), even if the Guidelines enhancement already applies—provided the court ties the facts to § 3553(a).

IV. Complex Concepts Simplified

  • PSR (Presentence Report): A probation officer’s report used at sentencing that includes Guidelines calculations and background facts. If the defendant does not object to factual statements, the judge can usually accept them as true.
  • Procedural vs. substantive reasonableness: Procedural asks whether the court used the correct process (correct range, proper factfinding, adequate explanation). Substantive asks whether the sentence length is reasonable in light of § 3553(a).
  • Plain error: A demanding appellate standard applied when the defendant did not object in the district court; the defendant must show a clear error that affected substantial rights.
  • Departure vs. variance: A departure is a Guidelines-defined move from the range using Guidelines rules. A variance is a move based on § 3553(a)’s broader sentencing purposes.
  • “Heartland”: The typical set of cases the Sentencing Commission expected a guideline to cover. The court here held “heartland” analysis is not a procedural prerequisite for variances.
  • Rule 32(i)(3): The rule that governs disputes over PSR facts: courts resolve disputed facts, but may accept undisputed facts as findings.

V. Conclusion

United States v. Vazquez-Garcia consolidates two practical sentencing rules in the Tenth Circuit: (1) unobjected-to PSR factual allegations— including underlying-conduct allegations about prior convictions—may be adopted as fact under Rule 32(i)(3)(A) without a separate reliability finding; and (2) a district court may vary upward based on § 3553(a) considerations tied to criminal history even when the Guidelines already account for that history, without performing a departures-style “heartland” analysis.

On substantive review, the opinion illustrates how a major upward variance can be upheld when the sentencing judge connects prior violent conduct to the present offense’s seriousness, deterrence needs, and public-protection concerns—while staying on the permissible side of the line drawn by cases like United States v. Allen.