Upward Variance to the Statutory Maximum in Illegal Reentry Based on Recidivism and Public-Safety Risk, Not National Sentencing Averages

Introduction

In United States v. Gabriel Rojas-Lopez (11th Cir. Feb. 3, 2026) (unpublished), the Eleventh Circuit affirmed a 24-month (statutory maximum) sentence for unlawful reentry under 18 U.S.C. § 1326(a), despite an advisory Guidelines range of 1 to 7 months and a joint recommendation for a within-range sentence.

The case centered on whether the district court’s large upward variance was substantively unreasonable under 18 U.S.C. § 3553(a), particularly in light of (i) mitigating personal circumstances and (ii) an asserted unwarranted sentencing disparity supported by Sentencing Commission averages for similar illegal reentry cases. The parties were the United States (appellee) and Gabriel Rojas-Lopez (appellant).

Summary of the Opinion

The Eleventh Circuit held that the district court did not abuse its discretion by varying upward to the statutory maximum. The court found the variance justified by the defendant’s extraordinary recidivism and public-safety risks, including four prior removals/deportations, eight DUI arrests, and six DUI convictions, with relatively minimal prior custodial consequences. The panel also rejected the disparity argument, reasoning that averages and generalized statistical comparisons did not establish that the defendant was “similarly situated” to typical illegal reentry defendants.

Analysis

Precedents Cited

  • Gall v. United States, 552 U.S. 38 (2007)
    The foundational framework: appellate review of substantive reasonableness is for abuse of discretion, considering the totality of the circumstances. Gall also instructs that when a district court correctly calculates and reviews the Guidelines range, it has necessarily given significant consideration to disparity avoidance, because the Sentencing Commission already accounts for that objective in the ranges.
  • United States v. Butler, 39 F.4th 1349 (11th Cir. 2022)
    Supplies key Eleventh Circuit gloss: appellate courts will affirm if the sentence is within the “ballpark of permissible outcomes,” there is no presumption of reasonableness/unreasonableness for outside-Guidelines sentences, and the district court may assign “great weight” to particular § 3553(a) factors. It also articulates the requirement that a judge provide sufficient justification for an unusually harsh/lenient variance.
  • United States v. Boone, 97 F.4th 1331 (11th Cir. 2024)
    Confirms the allocation of burden: the challenger bears the burden to show unreasonableness.
  • United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015)
    Directly supports the district court’s emphasis on criminal history: giving substantial weight to a defendant’s record aligns with § 3553(a) because multiple factors relate to criminal history and public protection.
  • United States v. Ortiz-Delgado, 451 F.3d 752 (11th Cir. 2006)
    Reinforces that the sentencing court need not explicitly address every § 3553(a) factor on the record; acknowledging consideration can suffice.
  • United States v. Amedeo, 487 F.3d 823 (11th Cir. 2007)
    Establishes that failure to discuss mitigating evidence does not mean it was ignored; this undercuts arguments based solely on the absence of lengthy mitigation discussion.
  • United States v. Lebowitz, 676 F.3d 1000 (11th Cir. 2022) (as relied upon in the opinion)
    Used for the proposition that assigning less weight to mitigation than the defendant prefers does not render a sentence unreasonable.
  • United States v. Docampo, 573 F.3d 1091 (11th Cir. 2009)
    Provides the “apples to apples” principle for disparity claims: comparisons must involve truly similarly situated defendants, not broad categories or generalized averages.
  • United States v. Johnson, 980 F.3d 1364 (11th Cir. 2020)
    Clarifies disparity analysis: the question is whether the proposed comparators are similarly situated in relevant respects.
  • United States v. Hill, 643 F.3d 807 (11th Cir. 2011)
    Skepticism toward “national grade curve” arguments; the opinion uses Hill to discount reliance on nationwide averages as an effective measure of unwarranted disparity.
  • United States v. Johnson, 803 F.3d 610 (11th Cir. 2015)
    Supports the legitimacy of an upward variance where the court finds the criminal history category understates the seriousness of the defendant’s history—conceptually parallel to repeated removals and dangerous conduct not fully captured by the Guidelines.
  • United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc)
    Sets a high bar for reversal: vacatur only if the appellate court has a “definite and firm conviction” of a clear error of judgment in weighing the § 3553(a) factors.

Legal Reasoning

The court’s reasoning proceeds in three interlocking steps:

  1. Deferential review constrains appellate substitution of judgment.
    Relying on Gall v. United States and United States v. Butler, the panel emphasized that substantive reasonableness review is not a re-sentencing; the question is whether the district court’s outcome fell within a permissible range.
  2. The upward variance was justified by § 3553(a) considerations, especially public safety, deterrence, and respect for law.
    The district court identified concrete features of the defendant’s history: repeated removals/reentries, and a pattern of alcohol-impaired driving with minimal prior punishment. Invoking the logic endorsed by United States v. Rosales-Bruno (criminal history as central to multiple § 3553(a) factors) and United States v. Johnson, 803 F.3d 610 (variance where criminal history category understates seriousness), the panel accepted the district court’s assessment that the Guidelines range was “insufficient” to reflect seriousness and protect the public.
  3. Mitigation and disparity arguments failed under established standards.
    On mitigation, the opinion relied on United States v. Ortiz-Delgado and United States v. Amedeo to reject the notion that the district court had to discuss each mitigating point in depth; and on United States v. Lebowitz to reaffirm that a court may weigh aggravation more heavily. On disparity, the panel invoked United States v. Docampo (apples-to-apples) and United States v. Hill (no “national grade curve”) to conclude that generalized averages do not establish unwarranted disparity, particularly where the defendant’s removal history and DUI record were atypical.

Impact

Although unpublished and therefore not binding precedent, the decision is a clear signal within Eleventh Circuit sentencing practice:

  • Large upward variances in § 1326(a) cases can be sustained when the record reflects repeated immigration violations combined with public-safety endangerment (here, persistent DUI conduct), even if the variance reaches the statutory maximum.
  • National or circuit averages are weak disparity tools absent case-specific comparator evidence. Defendants seeking relief on disparity grounds will likely need detailed, fact-matched comparators rather than aggregated Sentencing Commission data.
  • Criminal history “undercapture” arguments remain potent: even where the Guidelines technically account for criminal history, a district court may conclude the category fails to reflect the seriousness or the need for deterrence and public protection—especially when prior sanctions have been minimal relative to repeated dangerous conduct.

Complex Concepts Simplified

  • Guidelines range: The advisory sentencing range produced by the U.S. Sentencing Guidelines after calculating an offense level and criminal history category. It is influential but not mandatory.
  • Upward variance: A sentence above the advisory Guidelines range based on the judge’s application of the § 3553(a) statutory factors.
  • Substantive reasonableness: Whether the sentence length is justified in light of the § 3553(a) factors and the case’s facts (as opposed to “procedural” errors like miscalculating the Guidelines).
  • Abuse-of-discretion review: A deferential appellate standard; the sentence is reversed only if the district court’s weighing of factors was a clear error of judgment.
  • Unwarranted sentencing disparity: A difference in punishment between truly similarly situated defendants that cannot be justified by relevant distinctions. Courts require “apples-to-apples” comparisons, not broad statistical averages.
  • Statutory maximum: The highest sentence allowed by statute for the offense of conviction (here, two years under § 1326(a) as charged in the opinion).

Conclusion

United States v. Gabriel Rojas-Lopez affirms that, in the Eleventh Circuit, a district court may impose an exceptionally high upward variance—up to the statutory maximum in an illegal reentry case—when the defendant’s record demonstrates repeated immigration violations coupled with significant public-safety risks such as habitual DUI conduct. The opinion also reinforces that sentencing-disparity challenges require concrete, similarly situated comparators; general national averages rarely suffice where the defendant’s aggravating facts are atypical. In short, the decision underscores the breadth of district-court discretion under § 3553(a) and the steep hurdle for overturning variances on substantive reasonableness review.