Background
Gustavo Nabor Tolentino-Cortes appealed his forty-eight-month sentence imposed for conviction of illegal reentry in violation of eight U.S.C. section thirteen twenty-six. He argued the sentence was substantively unreasonable and that the district court gave insufficient weight to the sentencing guidelines while placing too much emphasis on aggravating factors in his criminal and removal history.
The court’s reasoning
The record indicates the district court considered the sentencing guidelines and the factors set forth in eighteen U.S.C. section thirty-five fifty-three. The court chose to vary upwardly in light of the defendant’s criminal and removal history, which was within its discretion. The appellate court found the extent of the variance was not unreasonable as it was similar to other variances previously affirmed. The defendant did not demonstrate that the district court abused its discretion by imposing a sentence that failed to reflect the section thirty-five fifty-three factors.
What it means going forward
This decision reinforces the discretion of district courts to impose upward variances in illegal reentry cases when supported by a defendant’s criminal and removal history.
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