Variance versus Departure: Rule 32(h) Notice and § 3553(a) Sentencing Factors in United States v. Pacheco Colon
Introduction
United States v. Lenen Enrique Pacheco Colon (11th Cir. Jan. 27, 2025) clarifies when a district court must give advance notice under Federal Rule of Criminal Procedure 32(h) before imposing an above–Guidelines sentence. Pacheco Colon was convicted of carjacking (18 U.S.C. § 2119) and brandishing a firearm in furtherance of a crime of violence (18 U.S.C. § 924(c)(1)(A)). He received a total term of 200 months’ imprisonment—108 months on the carjacking count (high end of the advisory range) and 92 months on the § 924(c) count (eight months above the advisory range). On appeal, he argued (1) that the court erred by failing to give Rule 32(h) notice of its intent to exceed the advisory range for the § 924(c) count, and (2) that the sentence was substantively unreasonable.
Summary of the Judgment
The Eleventh Circuit affirmed. It held that:
- An above–Guidelines sentence based on §§ 3553(a) factors is a variance, not a departure, and thus does not trigger Rule 32(h)’s pre-departure notice requirement.
- The district court’s reliance on Pacheco Colon’s extensive criminal history and the egregious facts of the instant offenses fit squarely within the § 3553(a) framework and justify the variance.
- The sentence—well below the life-maximum and only modestly above the advisory range—was substantively reasonable. The court had adequately considered the defendant’s personal history, mental-health issues, and mitigating evidence.
Analysis
Precedents Cited
- Irizarry v. United States (553 U.S. 708, 2008): Distinguished “departures” (Guidelines-based) from “variances” (§ 3553(a)-based) and held Rule 32(h) notice applies only to departures.
- United States v. Hall (965 F.3d 1281, 2020): Directed courts to examine whether the district court relied on a specific Guidelines departure provision or § 3553(a) factors to determine whether a sentence was a departure or a variance.
- United States v. Kapordelis (569 F.3d 1291, 2009): Emphasized that lack of citation to a departure provision indicates a variance.
- Williams v. United States (526 F.3d 1312, 2008) & Pugh v. United States (515 F.3d 1179, 2008): Confirmed that a defendant’s criminal history and the seriousness of the offense are § 3553(a) factors.
- Gall v. United States (552 U.S. 38, 2007): Affirmed that variances do not carry a presumption of unreasonableness and are reviewed under an abuse-of-discretion standard.
Legal Reasoning
The Eleventh Circuit applied a two-step analysis:
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Variance vs. Departure:
- Departures follow specific Guidelines provisions; variances rest on a holistic assessment of the § 3553(a) factors.
- Here, the district court never cited any Guidelines departure provision. Instead, it expressly weighed the defendant’s criminal history and the gravity of his crimes under § 3553(a). That made the above-Guidelines sentence a variance—and Rule 32(h) notice was not required.
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Substantive Reasonableness:
- The court must consider the nature and circumstances of the offense, the defendant’s history and characteristics, the advisory range, and the need for just punishment, deterrence, and protection of the public.
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Here, the district court explicitly acknowledged:
- It had reviewed the Presentence Investigation Report and the parties’ arguments (including Pacheco Colon’s abusive upbringing, bipolar diagnosis, and opioid addiction).
- It understood those mitigating factors, but found the crimes so “egregious” and the defendant’s record so troubling that a modest upward variance was warranted.
Impact
United States v. Pacheco Colon provides clarity on two recurring sentencing issues:
- Notice under Rule 32(h): District courts need not provide advance notice when imposing a variance based on § 3553(a), even if the variance replicates what could also be justified under a Guidelines departure provision.
- Reasonableness review: A sentence modestly above the advisory range but well below the statutory maximum, supported by clear § 3553(a) findings, will survive a substantive-reasonableness challenge.
Future litigants will cite Pacheco Colon when arguing that a variance grounded in the defendant’s criminal history or offense seriousness does not require departure notice, and when defending moderate upward variances on appellate review.
Complex Concepts Simplified
- Departure vs. Variance
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Departure: A sentence above or below the Guidelines range for a reason explicitly enumerated in the Sentencing Guidelines. Requires notice under Rule 32(h) if the ground wasn’t flagged in the PSI or a pre-hearing filing.
Variance: A non-Guidelines sentence based on broader sentencing factors in 18 U.S.C. § 3553(a). No advance notice is required. - Rule 32(h)
- Requires district courts to give “reasonable notice” before departing from Guidelines provisions that neither the PSI nor the parties’ filings identified. The rule protects the defendant’s right to address and contest any unanticipated grounds for departure.
- § 3553(a) Factors
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Factors guiding district-court sentencing decisions, including:
- The nature and circumstances of the offense
- The history and characteristics of the defendant
- The need for the sentence to reflect the offense’s seriousness, deter crime, and protect the public
- The advisory Guidelines range and sentencing policy statements
- Avoidance of unwarranted disparities
Conclusion
United States v. Pacheco Colon reinforces two important sentencing principles in the Eleventh Circuit:
- An above–Guidelines sentence grounded in § 3553(a) is a variance, not a departure—and thus no advance Rule 32(h) notice is required.
- A moderately above–Guidelines sentence, well below the statutory maximum and supported by clear § 3553(a) findings, will be upheld as substantively reasonable.
This decision sharpens the boundary between departures and variances, streamlines notice requirements, and demonstrates the deference accorded to district courts’ balancing of sentencing factors.
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