Upward Variance for Illegal Reentry Upheld Where Guidelines Understate Extensive, Largely Unscored Criminal History and Repeated Deportations

Case: United States v. Carlos Nunez-Inzunza (11th Cir. Jan. 29, 2026) (unpublished, Non-Argument Calendar)
Offense: Illegal reentry after deportation for an aggravated felony, 8 U.S.C. § 1326(a) and (b)(2)
Disposition: Sentence affirmed as substantively reasonable

1. Introduction

Carlos Nunez-Inzunza, a Mexican citizen, pleaded guilty to illegal reentry after deportation following an aggravated felony. The Sentencing Guidelines range was 30–37 months (offense level 17; criminal history category III), but the district court imposed a 60-month sentence—an upward variance.

The appeal presented a familiar modern sentencing question: whether a substantial variance above the Guidelines is substantively unreasonable when the sentencing judge relies heavily on criminal history and recidivism that the defendant argues were already accounted for in the Guidelines computation.

Nunez-Inzunza argued (i) his was a “mine-run” illegal reentry case, (ii) the district court over-weighted criminal history already captured by the Guidelines, and (iii) the court ignored mitigating factors (childhood trauma and a medical condition) and failed to justify the degree of variance.

2. Summary of the Opinion

The Eleventh Circuit affirmed. It held that the district court did not abuse its discretion in concluding that the case was not “mine-run” and that the Guidelines range underrepresented Nunez-Inzunza’s history and risk to the community. Key factual anchors included:

• Six prior removals from the United States (1996–2006);
• 21 prior convictions over roughly 30 years, while only two sets of convictions received criminal-history points;
• A prior 84-month federal sentence for immigration-related offenses that did not deter reentry;
• Recent burglary/grand theft convictions (2022) involving burglaries of dwellings and theft of appliances.

The court emphasized that the district court expressly tied the variance to legitimate 18 U.S.C. § 3553(a) purposes—just punishment, deterrence, and protection of the public—and that the 60-month sentence remained far below the 20-year statutory maximum.

3. Analysis

3.1. Precedents Cited

The panel’s affirmance is best understood as an application of well-settled Eleventh Circuit and Supreme Court sentencing review principles. The opinion’s cited precedents supply the doctrinal building blocks:

• Gall v. United States, 552 U.S. 38 (2007): The central framework for appellate review of sentencing—deferential abuse-of-discretion review, consideration of the totality of the circumstances, and the notion that a “major variance” should be supported by a “more significant justification.” The panel invoked Gall both for the standard and for the sufficiency of a sentencing court’s explanation without requiring a mechanical discussion of every § 3553(a) factor.
• United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc): Defines abuse-of-discretion in substantive reasonableness terms and reiterates that appellate courts give deference to the district court’s judgment that the § 3553(a) factors justify the extent of the variance. The panel used Irey to frame what “unreasonableness” must look like to warrant reversal.
• United States v. Tome, 611 F.3d 1371 (11th Cir. 2010): Places the burden on the challenger to show unreasonableness in light of the record and § 3553(a). This directly undercut the defendant’s attempt to characterize the case as “mine-run” by assertion rather than by comparison to the record facts the judge credited.
• United States v. Butler, 39 F.4th 1349 (11th Cir. 2022): Clarifies that a district court’s failure to explicitly discuss mitigating evidence does not mean it ignored it. The panel relied on Butler to reject the argument that silence at the hearing equaled non-consideration of trauma/medical mitigation.
• United States v. Shabazz, 887 F.3d 1204 (11th Cir. 2018): Reinforces “due deference” to how the district court weighs sentencing factors. This supports the panel’s reluctance to reweigh the balance between mitigation and criminal history on appeal.
• United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): A key Eleventh Circuit authority for two propositions: (i) courts may attach greater weight to some § 3553(a) factors than others, including criminal history; and (ii) where criminal history is extensive, a court may conclude the case falls outside the Guidelines “heartland,” supporting a variance. The panel used this to justify treating the defendant as atypical for illegal reentry given repeated removals and extensive convictions.
• United States v. Oudomsine, 57 F.4th 1262 (11th Cir. 2023): Confirms that the district court has wide discretion to determine whether a case is “mine-run” and whether § 3553(a) justifies a variance. This directly answers the defendant’s “average illegal reentry sentence” argument: the characterization is for the sentencing court, not the appellate court, so long as it is reasonable.
• United States v. Osorio-Moreno, 814 F.3d 1282 (11th Cir. 2016): A particularly analogous illegal-reentry variance case cited for two points: (i) significant upward variances can be substantively reasonable, and (ii) mitigation such as addiction or trauma does not compel a within-range sentence where recidivism and danger justify more. The panel invoked it to normalize the 60-month outcome despite claimed mitigation.
• United States v. Riley, 995 F.3d 1272 (11th Cir. 2021): Explains that heavily weighing criminal history is consistent with § 3553(a) because multiple statutory factors are criminal-history-related. The panel used this to reject “double counting” arguments at the variance stage.
• United States v. Sanchez, 586 F.3d 918 (11th Cir. 2009): Supports upward variances where the guideline range is insufficient in light of criminal history. The panel relied on Sanchez to validate the sentencing judge’s conclusion that category III did not reflect the true scope of conduct.
• United States v. Dougherty, 754 F.3d 1353 (11th Cir. 2014): Notes that a sentence well below the statutory maximum is an indicator of reasonableness. Here, 60 months versus a 20-year maximum supported affirmance.

3.2. Legal Reasoning

The panel’s reasoning follows a structured substantive-reasonableness path anchored in § 3553(a) and deference:

1. Totality-of-circumstances and deference: Under Gall v. United States and United States v. Irey, appellate review is not a do-over of sentencing; it asks whether the district court’s choice fell within a range of reasonable outcomes.
2. Not “mine-run”: Relying on United States v. Oudomsine and United States v. Rosales-Bruno, the panel treated the “mine-run” label as a district-court judgment call. The record supported atypicality: six deportations, a decades-long conviction history, and a prior 84-month immigration sentence that failed to deter.
3. Criminal history as a permissible driver of variance: The court rejected the notion that because the Guidelines consider criminal history, the judge may not also treat it as a variance factor. Quoting United States v. Riley in substance, it viewed criminal history as central to multiple § 3553(a) aims: deterrence, protection of the public, and respect for law.
4. Underrepresentation due to unscored convictions: A crucial factual point was that only two sets of convictions generated criminal history points. The panel accepted the district court’s conclusion that the Guidelines calculation (category III) did not reflect the “real” scope of recidivism. This is the classic United States v. Sanchez rationale.
5. Explanation and statutory purposes: The district court tied the variance to legitimate § 3553(a)(2) objectives—just punishment, deterrence, and public protection—satisfying Gall v. United States’s demand for a reasoned justification proportional to the variance.
6. Mitigation need not be discussed at length: Citing United States v. Butler, the panel held that failure to explicitly recite mitigating factors does not equal failure to consider them, especially where the court heard and acknowledged defense arguments.
7. Statutory maximum “reasonableness indicator”: Invoking United States v. Dougherty, the panel treated the large gap between the imposed sentence (5 years) and the statutory maximum (20 years) as supportive evidence that the sentence was not extreme or irrational.

3.3. Impact

Although unpublished, the decision reinforces several practical points likely to influence sentencing litigation in illegal-reentry cases within the Eleventh Circuit:

• “Mine-run” arguments are fact-sensitive and deferential: Broad assertions about average sentences or typical outcomes will carry limited weight when the record shows repeated removals, persistent reentry, or extensive criminal conduct.
• Unscored convictions matter: Where a defendant has many convictions that do not receive criminal history points (due to age, consolidation, or other Guidelines rules), district courts have substantial room to find that the criminal history category underrepresents risk and culpability and to vary upward.
• Mitigation is not a trump card: Trauma and medical conditions may be considered, but this opinion underscores that courts may reasonably prioritize deterrence and public protection—especially when past severe sentences did not deter.
• Variance justifications can be concise if connected to § 3553(a): The panel accepted a relatively straightforward rationale (danger to the community, deterrence, just punishment) so long as it was grounded in record facts and statutory objectives.

4. Complex Concepts Simplified

• Guideline range: The recommended imprisonment range calculated under the U.S. Sentencing Guidelines using the offense level and criminal history category. Here, it was 30–37 months.
• Upward variance: A sentence above the guideline range based on the judge’s assessment of the 18 U.S.C. § 3553(a) factors (as opposed to a “departure” based on specific Guideline provisions).
• Substantive reasonableness: Whether the length of the sentence is reasonable in light of § 3553(a) and the facts—not whether the correct procedural steps were followed.
• Abuse-of-discretion review: A highly deferential appellate standard. The appellate court does not ask what sentence it would have imposed, but whether the district court’s sentence falls outside the range of permissible choices.
• “Mine-run” / “heartland”: Informal terms for a typical case that the Guidelines are designed to capture. If a case is outside the “heartland” (e.g., unusual recidivism or danger), a variance is more readily justified.
• Criminal history points: The numerical scoring system that determines a defendant’s criminal history category. Some convictions may not score (for example, because they are too old), even though they remain relevant to the defendant’s actual history and risk.

5. Conclusion

United States v. Carlos Nunez-Inzunza exemplifies the Eleventh Circuit’s consistent approach to reviewing upward variances in illegal-reentry cases: substantial deference to district courts that ground a higher sentence in record-supported recidivism, repeated removals, and public-safety concerns. The opinion confirms that a sentencing judge may treat a guideline range as underrepresenting a defendant’s criminal history—particularly where many convictions are unscored—and may impose a materially higher sentence so long as the rationale is tethered to § 3553(a) and not driven by improper factors.