“Incremental Punishment Re-affirmed”: United States v. Rolando Joel De Leon De Paz and the Seventh Circuit’s Endorsement of Robust Upward Variances for Serial § 1326 Offenders

1. Introduction

United States v. De Leon De Paz, No. 23-3115 (7th Cir. June 20 2025), is an appellate decision that addresses two recurring themes in federal criminal jurisprudence:

When, and how far, a district court may vary upward from the U.S. Sentencing Guidelines in order to deter a defendant who repeatedly violates the same criminal statute—in this instance, 8 U.S.C. § 1326 (illegal re-entry after removal).
The ongoing (and largely unsuccessful) constitutional attack on § 1326 under the Fifth Amendment’s equal-protection component.

The Seventh Circuit, speaking through Judge St. Eve and joined by Judges Easterbrook and Kirsch, affirmed a 48-month sentence—roughly double the top of the 21–27-month Guideline range—imposed on Rolando Joel De Leon De Paz, a Honduran national who had already been removed from the United States five times and had been convicted three previous times under § 1326.

By approving this upward variance, the court crystallized a practical rule: where a defendant’s undeterred, repetitive conduct renders the Guidelines “too lenient,” a district court acts within its discretion to impose a markedly higher sentence so long as the § 3553(a) factors are thoroughly discussed and logically applied.

2. Summary of the Judgment

Charge: One count of illegal re-entry in violation of 8 U.S.C. § 1326.
Plea: Guilty.
Guideline range: 21–27 months (reflecting § 2L1.2(b)(1)(A) + prior convictions).
Sentence imposed: 48 months (above-Guidelines).
Issues on appeal: (i) substantive reasonableness of the sentence; (ii) constitutionality of § 1326.
Holding: Sentence affirmed; § 1326 constitutional (bound by United States v. Viveros-Chavez).
Standard of review: Abuse-of-discretion, under Gall v. United States.

3. In-Depth Analysis

3.1 Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007):
Establishes abuse-of-discretion review and requires appellate deference to sentencing choices when the district court sufficiently explains its reasoning under § 3553(a).
Application: The panel invoked Gall to remind that their task is not to substitute their own sentence, but to test coherence and logic.
United States v. Campbell, 37 F.4th 1345 (7th Cir. 2022):
Articulates the question “whether the district judge imposed a sentence for logical reasons that are consistent with § 3553(a).”
Application: Quoted verbatim to frame substantive-reasonableness review.
United States v. White, 126 F.4th 1315 (7th Cir. 2025) & United States v. Wood, 31 F.4th 593 (7th Cir. 2022):
Clarify that while a variance must be “sufficiently compelling,” no presumption of unreasonableness attaches to above-Guideline sentences.
Application: Reinforces that appellate courts will not second-guess robust variances if reasons are sound.
United States v. Vasquez-Abarca, 946 F.3d 990 (7th Cir. 2020) and United States v. Sanchez-Lopez, 858 F.3d 1064 (7th Cir. 2017):
Both approve upward variances for serial § 1326 offenders where earlier sentences failed to deter.
Application: Provide specific factual analogues; the panel cites them to show consistency with prior practice.
United States v. Moreland, 703 F.3d 976 (7th Cir. 2012):
Holds that factors increasing recidivism risk (e.g., substance abuse) support longer sentences.
Application: Responds to appellant’s argument that alcoholism was improperly weighed.
United States v. Viveros-Chavez, 114 F.4th 618 (7th Cir. 2024), cert. denied (2025):
Rejected an equal-protection attack on § 1326.
Application: Forecloses the appellant’s constitutional claim without extended analysis.

3.2 The Court’s Legal Reasoning

The opinion unfolds in three logical steps:

Identify the “biggest complicating factor.” The district judge underscored the “fourth conviction for essentially the same conduct.” Repetition despite escalating penalties demonstrated specific deterrence failure.
Evaluate the Guidelines’ adequacy. Although the Guidelines account for some recidivism (4-level enhancement; criminal-history points), they did not capture the qualitative problem of blatant disregard for prior judicial warnings. Thus, the court deemed the range “too lenient.”
Apply § 3553(a) factors. • § 3553(a)(1): nature and circumstances (serial re-entries, substance abuse context). • § 3553(a)(2)(A)–(B): need for just punishment & deterrence—“send as strong a message as possible.” • § 3553(a)(2)(C): protection of the public, given alcohol-related offenses. • Mitigators (assault in detention, risks in Honduras) prevented an even higher term.
The Seventh Circuit found this balancing “thorough” and “logical.”

3.3 Potential Impact of the Decision

Upward Variances in Recidivist Contexts. Trial judges now have even firmer appellate cover to depart substantially above the Guidelines when confronting serial § 1326 (or other) offenders whose prior escalating sentences have not worked.
Incremental Punishment Doctrine Revitalized. The case revitalizes the idea that each failed sentence may justify a “meaningful jump” rather than a mechanical step.
Guideline Revision Pressure. Repeated findings that § 2L1.2 does not fully capture recidivism may prompt the Sentencing Commission to revisit the provision or criminal-history rules.
Equal-Protection Litigation Narrowed. The panel’s brief but categorical adherence to Viveros-Chavez signals futility for similar constitutional arguments in the Seventh Circuit absent Supreme Court intervention.
Practical Sentencing Hearings. Defense counsel may now feel compelled to request mid-Guideline or even above-Guideline sentences (as here) to preserve credibility; prosecutors likely will cite De Leon De Paz whenever advocating substantial variances.

4. Complex Concepts Simplified

8 U.S.C. § 1326: The federal statute criminalizing re-entry by a previously removed non-citizen without permission from the Attorney General or DHS.
Sentencing Guidelines & “Variance”: Advisory ranges computed by the U.S. Sentencing Commission. A “variance” occurs when a court imposes a sentence outside that range—either upward or downward—based on statutory factors.
Substantive Reasonableness: Appellate review that asks whether the final sentence is too harsh or too lenient in light of the § 3553(a) factors and the record.
§ 3553(a) Factors: Congressional checklist guiding sentencing, including the offense’s nature, history of defendant, deterrence, public protection, and avoiding unwarranted disparities.
Incremental Punishment: The concept that each successive crime may warrant a correspondingly harsher penalty to achieve deterrence, especially when prior sentences failed.
Equal-Protection Challenge to § 1326: An argument (largely unsuccessful) that the statute is rooted in racial animus and therefore unconstitutional; rejected by the Seventh Circuit in Viveros-Chavez.

5. Conclusion

United States v. De Leon De Paz does not blaze entirely new doctrinal ground, but it sharpens and re-affirms a critical sentencing principle: persistent recidivism—especially in the context of illegal re-entry—may justify sizeable upward variances when the Guidelines understate deterrence needs. The Seventh Circuit’s unanimous endorsement offers district judges wide latitude, provided they lay out a coherent, § 3553(a)-grounded rationale.

For practitioners, the decision underscores the practical importance of (1) documenting prior warnings and failed deterrence, (2) framing substance-abuse or other recidivism-enhancing factors, and (3) anticipating equal-protection challenges to § 1326 being summarily rejected. For scholars and policymakers, the case illuminates the tension between advisory Guidelines uniformity and individualized, fact-intensive sentencing justice—an area likely to continue evolving.