Within-Guidelines Sentences Presumptively Satisfy § 3553(a)(6): Disparity Claims Require Comparator Evidence

Introduction

In United States v. Pantoja-Hernandez, consolidated appeals involving the same defendant (Jose Socorro Pantoja-Hernandez a/k/a Carlos Pantoja-Campos), the Tenth Circuit reviewed the substantive reasonableness of two within-Guidelines sentences: (1) a sentence for illegal reentry under 8 U.S.C. § 1326(a)(1), (a)(2), (b)(1), and (2) a revocation sentence for violating supervised release by committing that new illegal reentry offense.

The central issue on appeal was narrowly framed: whether the district court imposed substantively unreasonable sentences by failing to avoid “unwarranted sentence disparities” under 18 U.S.C. § 3553(a)(6), particularly because the defendant argued his placement in Criminal History Category VI allegedly lumped him with “dangerous” or violent offenders despite a purportedly nonviolent record.

Summary of the Opinion

The Tenth Circuit affirmed. Because both sentences fell within correctly calculated advisory Guidelines ranges, they were presumptively reasonable. The court held the defendant failed to rebut that presumption because he offered no statistics, comparator cases, or other evidence showing an actual unwarranted disparity among similarly situated defendants.

The panel also rejected (or declined to entertain) several related arguments: (a) the defendant’s complaint that the district court did not explicitly discuss § 3553(a)(6) was characterized as procedural and not properly raised because the appeal challenged only substantive reasonableness; and (b) the fact that both parties asked for lower sentences did not bind the sentencing judge.

Analysis

Precedents Cited

• United States v. Adams, 751 F.3d 1175 (10th Cir. 2014)
  Used to define the scope of substantive reasonableness review: whether the length of a sentence is reasonable in light of § 3553(a). This framed the appeal as a length-of-sentence challenge, not a Guidelines calculation dispute.
• United States v. McBride, 633 F.3d 1229 (10th Cir. 2011)
  Confirmed that the same substantive reasonableness framework applies to revocation sentences, supporting the court’s parallel treatment of the illegal reentry sentence and the supervised-release revocation sentence.
• Gall v. United States, 552 U.S. 38 (2007)
  Anchored the standard of review: deferential abuse-of-discretion review for all sentences and the proposition that correct Guidelines calculation and careful consideration of the range necessarily reflects consideration of disparity. The court leaned on Gall to reject demands for heightened appellate second-guessing.
• 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 the high bar the defendant needed to clear.
• United States v. Verdin-Garcia, 516 F.3d 884 (10th Cir. 2008)
  Provided the key presumption: a within-Guidelines sentence is presumed reasonable, with a “hefty” burden on the appellant to rebut it. This presumption drove the outcome once the defendant conceded the Guidelines were correctly calculated.
• United States v. Franklin, 785 F.3d 1365 (10th Cir. 2015)
  Central to the § 3553(a)(6) analysis: because the Guidelines aim to reduce nationwide disparities, a sentence within the Guideline range “necessarily” complies with § 3553(a)(6). The panel used Franklin to treat the defendant’s disparity argument as requiring concrete proof of an unwarranted disparity beyond the Guidelines baseline.
• United States v. Cortez, 139 F.4th 1146 (10th Cir. 2025) (McHugh, J., concurring)
  Cited for the proposition that defendants in the same criminal history category should have “similar criminal backgrounds” in the sense that they have similar offense counts and custody exposure—undercutting the defendant’s claim that Category VI is effectively “for violent offenders only.”
• United States v. Doty, 150 F.4th 1351 (10th Cir. 2025)
  A practical evidentiary principle: a sentencing court “couldn’t abuse its discretion by failing to consider facts not presented.” This was decisive because the defendant did not supply comparator evidence either for illegal reentry sentences or for comparable revocation violations.
• United States v. Gross, 44 F.4th 1298 (10th Cir. 2022)
  Used to distinguish procedural from substantive error. The panel treated the “failure to explicitly discuss disparities” argument as procedural (failure to consider factors), not substantive (unreasonable weighing/outcome), and therefore outside the issues the defendant properly raised.
• United States v. Ruiz-Terrazas, 477 F.3d 1196 (10th Cir. 2007)
  Even assuming the procedural critique were reachable, Ruiz-Terrazas supports that explicit factor-by-factor discussion is not required for within-Guidelines sentences. The panel cited it to validate the district court’s succinct explanation.
• United States v. Zamora-Solorzano, 528 F.3d 1247 (10th Cir. 2008)
  Reinforced “due deference” to a district court’s weighing of § 3553(a) factors. The panel relied on it to reject the claim that the district court overemphasized criminal history and public safety relative to mitigating family circumstances.

Legal Reasoning

1. Correct Guidelines calculation triggered a presumption of reasonableness.
   The defendant did not challenge the Guidelines computations. The illegal reentry advisory range was 24–30 months, and the revocation range was 18–24 months. The court imposed 24 months and 18 months respectively, with partial concurrency yielding 28 total months. Under United States v. Verdin-Garcia, both within-range sentences carried a presumption of substantive reasonableness.
2. § 3553(a)(6) disparity claims must be supported with comparator evidence.
   The defendant argued Criminal History Category VI effectively compared him to violent offenders, producing an unwarranted disparity. The panel rejected this for two reasons:
   • Conceptual mismatch: Category VI is based on criminal history points, not violence per se; nonviolent defendants can (and often do) fall within Category VI.
   • Proof failure: The defendant offered no statistics or cases demonstrating that similarly situated nonviolent Category VI illegal reentry defendants (or comparable revocation violators) receive shorter sentences, as required to show an “unwarranted” disparity.
3. The Guidelines themselves are the principal anti-disparity mechanism.
   Relying on Gall v. United States and United States v. Franklin, the panel treated within-Guidelines sentencing as inherently addressing § 3553(a)(6), absent a showing that the Guidelines range nonetheless produced a demonstrably unwarranted disparity in the defendant’s specific circumstances.
4. Sentencing Commission statistics supported the district court’s result.
   The PSR cited Commission data indicating that, over the last five years, for illegal reentry defendants with offense level 10 and criminal history category VI, the average sentence was 23 months and the median was 24 months. The defendant received 24 months—directly aligning with those benchmarks.
5. No abuse of discretion for failing to consider evidence not offered.
   Under United States v. Doty, the district court could not be faulted for not engaging in an unprompted disparity analysis based on unsubmitted comparators.
6. Procedural-vs-substantive boundary policed on appeal.
   The defendant’s complaint about the lack of explicit § 3553(a)(6) discussion was deemed procedural under United States v. Gross and therefore not properly presented in an appeal framed as purely substantive. In any event, United States v. Ruiz-Terrazas indicates explicit discussion is not required for within-Guidelines sentences.
7. Party recommendations do not constrain the court.
   Although both parties requested lower or more concurrent sentencing, the panel emphasized (citing Gall v. United States) that sentencing is committed to the court’s discretion, and appellate review must defer to the court’s weighing of factors under United States v. Zamora-Solorzano.

Impact

Although designated as a nonprecedential “Order and Judgment,” the decision has clear persuasive implications in the Tenth Circuit for § 3553(a)(6) disparity challenges:

• Comparator evidence is essential. Defendants arguing “unwarranted disparity” must bring concrete comparators (Sentencing Commission statistics, similarly situated cases, or other reliable sentencing data) to the district court and, if necessary, to the appellate record. Mere assertions about who “typically” falls within a criminal history category are unlikely to suffice.
• Category VI is not “violent-offender-only.” The reasoning discourages categorical arguments that treat high criminal history categories as proxies for violence rather than for recidivism and accumulated criminal history points.
• Within-Guidelines sentences remain difficult to overturn. The combination of the presumption of reasonableness and deferential abuse-of-discretion review makes successful substantive challenges particularly hard, especially when the district court references the § 3553(a) factors and ties the sentence to deterrence and public safety.
• Revocation sentencing is reviewed similarly to original sentencing. By applying the same framework to the revocation sentence, the opinion reinforces that revocation outcomes, too, will generally stand absent clear proof of irrational weighing or demonstrable disparity.

Complex Concepts Simplified

Substantive reasonableness

A challenge to whether the length of the sentence is too long (or too short) given the statutory purposes and factors in § 3553(a), such as deterrence, public protection, and avoiding unwarranted disparities.

Procedural error

A challenge to how the sentence was imposed—e.g., failing to calculate the Guidelines correctly, treating the Guidelines as mandatory, or failing to consider relevant § 3553(a) factors. This opinion treated “the judge did not explicitly discuss § 3553(a)(6)” as a procedural-type claim.

§ 3553(a)(6) unwarranted sentence disparities

The requirement that courts consider the need to avoid unjustified differences in sentences among defendants with similar records convicted of similar conduct. The Guidelines are designed to reduce such disparities, so a within-Guidelines sentence generally weighs against a disparity claim unless the defendant can show meaningful contrary data.

Presumption of reasonableness for within-Guidelines sentences

On appeal, if the district court correctly calculated the Guidelines and imposed a sentence within that range, the sentence is presumed reasonable. The defendant must then bring strong arguments and evidence to show the sentence is nonetheless unreasonable.

Criminal History Category VI

The highest criminal history category under the Guidelines, generally reflecting substantial criminal history points. It is not limited to violent offenders; it captures persistent or serious recidivism across offense types.

Concurrent vs. consecutive sentences

Concurrent sentences run at the same time; consecutive sentences run back-to-back. Here, the court made most of the revocation sentence concurrent but required four months to run consecutively, producing a 28-month total term.

Conclusion

United States v. Pantoja-Hernandez reinforces a practical rule for § 3553(a)(6) disparity challenges: when the district court imposes a within-Guidelines sentence, the defendant must do more than argue that a criminal history category groups him with different “types” of offenders. To rebut the presumption of reasonableness, the defendant must present reliable comparator evidence demonstrating an unwarranted disparity among truly similarly situated defendants. Absent such proof—and especially where Sentencing Commission statistics support the imposed term—the Tenth Circuit will defer to the district court’s weighing of deterrence, public safety, and mitigating factors.