Within-Guidelines Sentences and § 3553(a)(6): Disparity Claims Require Comparator Evidence; Courts Do Not Err by Ignoring Facts Not Presented

1. Introduction

In United States v. Pantoja-Campos (consolidated with an appeal captioned under Jose Socorro Pantoja-Hernandez), the Tenth Circuit reviewed the substantive reasonableness of two sentences imposed in the District of New Mexico: (1) a sentence for illegal reentry under 8 U.S.C. § 1326(a)(1), (a)(2), (b)(1), and (2) a sentence for violating supervised release tied to a prior illegal reentry conviction. The district court imposed 24 months for the new illegal reentry and 18 months for the supervised release violation, with 14 months concurrent and 4 months consecutive, for a total of 28 months.

The central appellate issue was whether the total punishment was substantively unreasonable—especially under 18 U.S.C. § 3553(a)(6) (avoiding unwarranted sentencing disparities)—given the defendant’s claim that his Criminal History Category VI overstated the seriousness of his nonviolent record and improperly grouped him with “dangerous” offenders.

2. Summary of the Opinion

The Tenth Circuit affirmed. Because both sentences fell within their respective advisory Guidelines ranges and the defendant did not challenge the Guidelines calculations, the sentences were presumptively reasonable. The court held the defendant failed to rebut that presumption, particularly because his disparity argument under § 3553(a)(6) lacked evidence of similarly situated comparators receiving different sentences.

The panel also rejected an argument that the district court should have expressly discussed sentencing disparities at the hearing, explaining that this contention sounded in procedural error, while the appeal raised only substantive reasonableness. In any event, a detailed, factor-by-factor discussion was not required for a within-Guidelines sentence.

3. Analysis

3.1 Precedents Cited

• United States v. Adams, 751 F.3d 1175 (10th Cir. 2014): Used for the definition of substantive reasonableness—whether sentence length is reasonable in light of the § 3553(a) factors. This framed the appellate lens as one focused on the outcome (length), not sentencing procedure.
• United States v. McBride, 633 F.3d 1229 (10th Cir. 2011): Confirmed that the same substantive-reasonableness framework applies to revocation sentences as well as initial sentences. This legitimized applying the same deferential review to both the illegal reentry term and the supervised release term.
• Gall v. United States, 552 U.S. 38 (2007): Anchored the abuse-of-discretion standard for all sentences (inside or outside the Guidelines) and supported the proposition that proper consideration of the Guidelines inherently advances disparity reduction.
• United States v. Sanchez-Leon, 764 F.3d 1248 (10th Cir. 2014): Supplied the Tenth Circuit’s articulation of abuse of discretion (“arbitrary, capricious, whimsical, or manifestly unreasonable”), emphasizing how hard it is to overturn a sentence absent clear irrationality.
• United States v. Verdin-Garcia, 516 F.3d 884 (10th Cir. 2008): Provided the key presumption: a within-Guidelines sentence is presumed reasonable, and rebutting that presumption is a “hefty” burden. This presumption did most of the doctrinal work once the court confirmed the Guidelines were correctly calculated.
• United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015): Supported the opinion’s core § 3553(a)(6) point: because the Guidelines aim to reduce nationwide disparities, a within-Guidelines sentence “necessarily” complies with § 3553(a)(6) absent a compelling showing otherwise.
• United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025) (McHugh, J., concurring): Cited to rebut the defendant’s premise that Criminal History Category VI is effectively a proxy for violent dangerousness. The concurrence’s reasoning reinforced that defendants in the same category should have broadly comparable criminal backgrounds because the category is driven by points (number/recency/custody), not offense “type” alone.
• United States v. Doty, 150 F.4th 1351 (10th Cir. 2025): Crucial to the disposition of the disparity claim: the district court “couldn’t abuse its discretion by failing to consider facts not presented.” This directly answered the appellate posture—no comparator evidence below, no reversible failure to address it.
• United States v. Gross, 44 F.4th 1298 (10th Cir. 2022): Used to distinguish procedural versus substantive error. The defendant’s complaint about the district court not explicitly discussing disparities was characterized as procedural and thus outside the appeal’s framing.
• United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007): Confirmed that a specific discussion of § 3553(a) factors is not required for sentences within the Guidelines range. This undercut any claim that the district court’s explanation was inadequate.
• United States v. Zamora-Solorzano, 528 F.3d 1247 (10th Cir. 2008): Reinforced “due deference” to the district court’s weighting of § 3553(a) factors—here, giving deterrence and public safety more weight than mitigation.

3.2 Legal Reasoning

1. Deferential standard + presumption for within-Guidelines sentences: The court began with Gall’s abuse-of-discretion review and Verdin-Garcia’s presumption of reasonableness. Because both sentences were within the correctly calculated ranges, the defendant had to affirmatively show the district court’s choice was “manifestly unreasonable,” not merely debatable.
2. § 3553(a)(6) disparity claims require evidence of “similar records” and “similar conduct”: The defendant argued that Category VI unfairly groups him with violent offenders, creating disparity. The panel treated this as an evidentiary failure: he provided no statistics or case examples showing that similarly situated defendants (e.g., nonviolent illegal reentry defendants with similar points/history) received materially different sentences.
3. The Guidelines already operationalize disparity avoidance: Relying on Franklin and Gall, the panel emphasized that careful calculation and consideration of the Guidelines inherently gives significant weight to disparity avoidance, and a within-range sentence “necessarily” satisfies § 3553(a)(6) unless convincingly rebutted.
4. Criminal History Category VI is points-based, not violence-based: Using Cortez, the court rejected the conceptual premise that Category VI is essentially reserved for violent offenders. The category is determined by criminal history points, which capture recidivism and custody history across offense types.
5. No abuse of discretion for failing to consider unpresented comparator facts: Citing Doty, the panel held the district court could not be faulted for not engaging with a disparity showing the defendant never made. This is particularly significant in sentencing appeals: an appellant cannot successfully complain about the absence of an analysis that would have depended on evidence never put before the sentencing judge.
6. Procedural vs. substantive framing matters on appeal: The defendant’s complaint about the district court’s lack of explicit disparity discussion was treated as procedural under Gross. Even if considered, Ruiz-Terrazas supplied the answer: within-Guidelines sentences do not require a detailed factor-by-factor explanation.
7. Party recommendations do not bind the court: The defendant argued the sentence was unreasonable partly because both sides requested a lower outcome. The panel relied on Gall and the general sentencing framework to reaffirm that the district court must exercise independent judgment, and Zamora-Solorzano to defer to its weighing of deterrence and public-safety concerns.

3.3 Impact

Although designated an “Order and Judgment” and “not binding precedent” (except under law of the case, res judicata, and collateral estoppel), the decision is a clear roadmap for how the Tenth Circuit will evaluate § 3553(a)(6) disparity arguments in routine, within-Guidelines sentencing appeals:

• Comparator evidence is essential: A defendant challenging a within-Guidelines sentence on disparity grounds should be prepared to present concrete comparators—statistics, sample sentences, or case examples—tied to genuinely similar records and conduct. General assertions about who “typically” falls in a criminal history category are unlikely to suffice.
• Recidivism-focused reasoning is strengthened in illegal reentry + revocation contexts: The opinion highlights deterrence and repeated reentries (here, characterized as the sixth illegal reentry conviction) as weighty considerations. Future appellants with repeated immigration recidivism and concurrent public-safety-adjacent offenses (e.g., DUI history) face a steep uphill climb on substantive reasonableness.
• Appellate framing can be outcome-determinative: By labeling the “insufficient explanation” complaint as procedural and noting the appeal raised only substantive reasonableness, the decision underscores that litigants must preserve and properly present procedural sentencing issues if they want meaningful appellate review on that front.

4. Complex Concepts Simplified

• Substantive reasonableness: A challenge to the length of the sentence—whether the final number of months is reasonable in light of § 3553(a).
• Procedural reasonableness: A challenge to how the sentence was imposed—e.g., failing to consider a factor, failing to explain, using clearly erroneous facts, or miscalculating the Guidelines.
• § 3553(a)(6) “unwarranted disparities”: The idea that similarly situated defendants should not receive materially different sentences without good reason. The Guidelines are designed to reduce these differences nationally, so a within-Guidelines sentence generally signals disparity concerns were addressed.
• Guidelines “presumption of reasonableness”: On appeal, if a sentence is within a correctly calculated Guidelines range, the appellate court starts from the premise that the sentence is reasonable. The appellant must produce strong reasons and record support to overcome that starting point.
• Criminal History Category VI: The highest criminal history category in the Guidelines, largely driven by accumulated criminal history points (number/recency/seriousness/custody), not limited to violent conduct.
• Concurrent vs. consecutive: Concurrent time is served at the same time as another sentence; consecutive time is served after. Here, the district court crafted a mixed structure (mostly concurrent, partially consecutive) to reach a total punishment of 28 months.

5. Conclusion

United States v. Pantoja-Campos reinforces a practical rule for sentencing appeals in the Tenth Circuit: when the district court imposes within-Guidelines sentences, a defendant claiming an “unwarranted disparity” under § 3553(a)(6) must do more than argue the Guidelines category feels mismatched—he must supply comparator evidence showing similarly situated defendants received meaningfully different sentences. Absent that showing, and given the deference demanded by Gall and the presumption described in Verdin-Garcia, affirmance is the expected outcome.