1

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_________________________________

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee,

v.

LINO DOMINGUEZ-BARRADAS, 

 Defendant - Appellant.

No. 23-2003

(D.C. No. 2:22-CR-01367-MIS -1)

(D.N.M.)

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before HOLMES, Chief Judge, PHILLIPS, and McHUGH, Circuit Judges.

_________________________________

Lino Dominguez-Barradas (“Mr. Dominguez”) pleaded guilty to illegal reentry 

into the United States. The district court sentenced him to 36 months’ imprisonment, 

varying upward from the U.S. Sentencing Guidelines range of 15 to 21 months. 

Mr. Dominguez appeals, arguing that his sentence was substantively unreasonable. 

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

* This order and judgment is not binding precedent, except under the doctrines of 

law of the case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and 

Tenth Circuit Rule 32.1.

FILED

United States Court of Appeals

Tenth Circuit

December 13, 2023

Christopher M. Wolpert

Clerk of Court

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I. BACKGROUND

Mr. Dominguez, a citizen of Mexico, was convicted of Second Degree Criminal 

Sexual Conduct in Minnesota in 2008 for the abuse of one of his stepdaughters and 

sentenced to 48 months’ incarceration, ten years of conditional release, and lifetime 

registration as a sex offender. The victim alleged Mr. Dominguez had sexually abused 

her several times and had sexually abused her sister two years earlier. Mr. Dominguez 

was released from custody on July 1, 2010, and removed from the United States on July

9, 2010, returning to Mexico. On May 31, 2022, United States Border Patrol agents 

arrested Mr. Dominguez in New Mexico. Mr. Dominguez admitted to being a citizen of 

Mexico without legal authorization to enter or remain in the United States. Federal 

authorities charged Mr. Dominguez with re-entering the United States after having 

previously been removed, in violation of 8 U.S.C. §§ 1326(a) and (b), and 

Mr. Dominguez pleaded guilty to the offenses. 

A Presentence Investigation Report (“PSR”) summarized the facts of his 2008

charges and conviction and set his offense level at 13 and criminal history category at II.

His Guidelines sentencing range was therefore 15 to 21 months. The PSR stated that “no 

information [was] identified concerning the offense or [Mr. Dominguez] which would 

warrant a variance from the advisory [G]uideline[s] range.” ROA Vol. 2 at 12. Although 

Mr. Dominguez’s only prior criminal conviction was the 2008 sexual abuse offense, 

described above, he was arrested for First Degree Criminal Sexual Conduct in 2007, but

no charges were filed. He was also accused of rape by a coworker in 2006; again, no 

charges were filed.

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In an addendum to the PSR, the probation officer stated that, in an evaluation 

completed by the state of Minnesota, presumably when he was convicted of sexual 

assault, Mr. Dominguez indicated a low risk of recidivism relative to other adult male sex 

offenders. However, the addendum also explained that “the available investigative 

information suggested that the defendant’s formal record of arrests and convictions likely 

represents an underestimate of his actual history of sexual offending,” and that 

accordingly, the Minnesota evaluation “likely represents an underestimate of his risk for 

future offending.” ROA Vol. 2 at 14.

Prior to sentencing, the district court notified the parties that it was considering an 

upward variance in Mr. Dominguez’s case. In response, Mr. Dominguez filed a pleading 

styled as a “sentencing request,” asking the court for a within-Guidelines sentence. In 

support of his request, Mr. Dominguez provided numerous letters of support from his 

friends, family, and members of his community.

During the sentencing hearing, the district court reemphasized that it was 

“considering an upward variance in this case, based on [Mr. Dominguez’s] [2008]

conviction for molesting his stepdaughter.”1 ROA Vol. 3 at 23. The Government stated it 

was “fine with a sentence at the high end of the Guideline[s] range in this case,” noting 

1 The district court refers to Mr. Dominguez’s “2007” conviction for sexual 

assault. According to the PSR, however, Mr. Dominguez was arrested in 2007 and 

convicted in 2008. We refer to the conviction as occurring in 2008 throughout this 

decision for consistency with the PSR and distinction from the 2007 allegations of sexual 

assault made by another stepdaughter, but not charged.

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that Mr. Dominguez served 48 months in custody after his 2008 conviction, had no 

convictions since his release from custody, and is in poor health. Id. at 23‒24.

Mr. Dominguez reasserted his request for a sentence within the Guidelines

sentencing range. He claimed he was “extremely remorseful” for his conduct leading to 

his 2008 conviction for criminal sexual conduct. Id. at 25. He also explained he had been 

drinking alcohol “substantially” at the time of his prior offense but had stopped drinking 

since returning to Mexico. Id. Additionally, Mr. Dominguez informed the district court he 

had been recently diagnosed with a tumor in his testicle.

2

The district court listed in detail the facts it was considering in fashioning an 

appropriate sentence for Mr. Dominguez, including the parties’ filings, the PSR, the 

length of Mr. Dominguez’s sentence for his prior criminal sexual conduct conviction, the 

nonviolent nature of the reentry offense, the lack of criminal charges in Mexico, letters of 

support filed on his behalf, his strong family relationships, and the sentencing disparity 

that could result from an upward variance.

The court further announced that it was “considering all of the [§] 3553(a) factors, 

including the history of the defendant and the nature and circumstances of the offense” as 

well as “the need for the sentence imposed to provide just punishment, respect for the 

law, adequate deterrence, to protect the public, and provide the defendant with 

treatment.” Id. at 33–34. This consideration included a review of the offense conduct 

underlying Mr. Dominguez’s 2008 criminal sexual conduct conviction. The court also 

2 The district court amended the PSR to reflect Mr. Dominguez’s change in health. 

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considered “the kind of sentences available, the sentencing range, and all United States 

Sentencing Guideline[s] policies,” and “the need to avoid unwarranted sentencing 

disparities.” Id. at 35‒36. But the court explicitly did not consider the 2007 allegations of 

sexual assault concerning another stepdaughter or the 2006 allegations of rape because 

Mr. Dominguez never faced charges for that alleged conduct.

Applying the facts of the case to the § 3553(a) factors, the district court concluded

that a Guidelines sentence would be “too low, given the serious nature of 

[Mr. Dominguez’s] history.” Id. at 35. The court reasoned that a Guidelines sentence 

would not “adequately deter [Mr. Dominguez]” because his prior sex offense conviction 

and sentence did not deter him from unlawfully entering the United States. Id. The court 

further found that a Guidelines sentence would not adequately protect the public from 

Mr. Dominguez, considering evidence that Mr. Dominguez is at risk for recidivism given 

the circumstances of his criminal sexual conduct conviction and the results of an 

evaluation indicating that, as it concerns his past criminal sexual conduct, “he minimized 

his culpability and continued to victimize the victim and saw himself as the victim.” Id. 

The court noted that “just punishment and respect for the law requires the Court give a 

higher sentence because [Mr. Dominguez] reentered the country illegally after 

committing such a serious sex crime.” Id. The court also stated that Mr. Dominguez’s 

time-served of 48 months for his criminal sexual conviction “does not fully capture the 

seriousness of the prior conviction.” Id. at 36. Finally, while the court stated that in its 

view there is no sentencing disparity in this case, if such disparity does exist, the court 

concluded it is “warranted by the particular circumstances of this case.” Id.

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The district court concluded that an upward variance was warranted and sentenced 

Mr. Dominguez to 36 months’ imprisonment, constituting a 15-month upward variance 

from his Guidelines sentence range. Mr. Dominguez appealed, challenging his sentence 

as substantively unreasonable. 

II. DISCUSSION

A. Standard of Review 

“When reviewing criminal sentences, we apply a standard of reasonableness, 

which involves both substantial and procedural components.” United States v. Farley, 36 

F.4th 1245, 1249 (10th Cir. 2022) (internal quotation marks omitted). We review the 

reasonableness of sentencing decisions for abuse of discretion. United States v. Peña, 963 

F.3d 1016, 1024 (10th Cir. 2020). This standard applies “[r]egardless of whether the 

sentence imposed is inside or outside the Guidelines range.” Gall v. United States, 552 

U.S. 38, 51 (2007). In conducting this review, we consider “whether the length of the 

sentence is reasonable given all the circumstances of the case in light of the factors set 

forth in 18 U.S.C. § 3553(a).” United States v. Williams, 10 F.4th 965, 977 (10th Cir. 

2021) (quotation marks omitted). “We do not reweigh the sentencing factors but instead 

ask whether the sentence fell within the range of rationally available choices that facts 

and the law at issue can fairly support.” United States v. Blair, 933 F.3d 1271, 1274 (10th 

Cir. 2019) (internal quotation marks omitted). “Thus, as long as the balance struck by the 

district court among the factors set out in § 3553(a) is not arbitrary, capricious, or 

manifestly unreasonable, we must defer to that decision even if we would not have struck 

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the same balance in the first instance.” United States v. Sells, 541 F.3d 1227, 1239 (10th 

Cir. 2008).

When a district court “decides that an outside-Guidelines sentence is warranted,

[it] must consider the extent of the deviation and ensure that the justification is

sufficiently compelling to support the degree of the variance.” Gall, 552 U.S. at 50. “A

‘major’ variance should have ‘a more significant justification than a minor one.’” United 

States v. Lente, 759 F.3d 1149, 1158 (10th Cir. 2014) (quoting Gall, 552 U.S. at 50).

However, while we may “take the degree of variance into account” in reviewing the 

reasonableness of a sentence outside the Guidelines range, we may not “use[] the 

percentage of a departure as the standard for determining the strength of the justifications 

required” or create a “presumption of unreasonableness for sentences outside the 

Guidelines range.” Gall, 552 U.S. at 47. In fact, we will “uphold even substantial 

variances when the district court properly weighs the § 3553(a) factors and offers valid 

reasons for the chosen sentence.” United States v. Gross, 44 F.4th 1298, 1304 (10th Cir. 

2022)(quotation marks omitted). “Still, we do not just provide a rubber stamp of approval 

and therefore must determine if the district court’s proffered rationale, on aggregate, 

justifies the magnitude of the sentence.” United States v. Walker, 74 F.4th 1163, 1202 

(10th Cir. 2023) (internal quotation marks omitted).

B. Substantive Unreasonableness

Mr. Dominguez asserts only a claim of substantive unreasonableness on appeal.

Therefore, we will review his sentence only to determine whether the district court’s 

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imposition of a 15-month upward variance was an abuse of discretion, considering all the 

circumstances of the case. See Williams, 10 F.4th at 977.

1. Rationale for Upward Variance

Mr. Dominguez argues the district court abused its discretion by relying solely on 

the severity of his prior conviction as justification for imposing an upward variance. He 

claims the district court wrongfully gave dispositive weight to a single factor in its 

§ 3553(a) analysis—his prior criminal sexual conduct conviction. He also asserts the 

district court gave undue weight to the nature of his prior sex offense, because his prior 

offense was already accounted for as an element of his conviction under 8 U.S.C. 

§ 1326(b)(2) and as a factor in determining his Guidelines sentencing range. 

When imposing sentences, district courts are required to “engage in a holistic 

inquiry of the § 3553(a) factors,” Lente, 759 F.3d at 1174 (quotation marks omitted), and 

to “consider every convicted person as an individual,” Gall, 552 U.S. at 52 (internal 

quotation marks omitted). A district court should not rely solely on one § 3553(a) factor 

without addressing other relevant factors. See United States v. Walker, 844 F.3d 1253, 

1259 (10th Cir. 2017). Still, “the district court need not afford equal weight to each 

§ 3553(a) factor, and we will defer on substantive-reasonableness review not only to a 

district court’s factual findings but also to its determinations of the weight to be afforded 

to such findings.” United States v. Cookson, 922 F.3d 1079, 1094 (10th Cir. 2019)

(internal quotation marks and citation omitted). Where a district court decides to vary, it 

“properly engages in [the § 3553(a)] inquiry when it bases its decision on specific, 

articulable facts supporting the variance and does not employ an impermissible 

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methodology or rely on facts that would make the decision out of bounds.” United States 

v. Barnes, 890 F.3d 910, 916 (10th Cir. 2018).

Here, the district court properly relied on specific, articulable facts and engaged in 

a proper balancing of the § 3553(a) factors when imposing an upward variance, even 

though it heavily weighed Mr. Dominguez’s prior criminal sexual conduct conviction.

The nature of Mr. Dominguez’s prior offense necessarily informed the district court’s 

assessment of several § 3553(a) factors, including “the nature and circumstances of the 

offense and the history and characteristics of the defendant” and “the need for the 

sentence imposed . . . to afford adequate deterrence to criminal conduct . . . [and] to 

protect the public from further crimes of the defendant.” 18 U.S.C. § 3553(a). The district 

court specifically noted that the serious nature of Mr. Dominguez’s prior offense, his 

decision to nevertheless reenter the United States illegally, and his risk of recidivism all 

informed its evaluation of the § 3553(a) factors and weighed in favor of an upward 

variance.

Although “[a] district court should not rely solely on one § 3553(a) factor without 

addressing other relevant factors . . . the district court need not afford equal weight to 

each § 3553(a) factor.” Walker, 74 F.4th at 1203 (internal quotation marks omitted); see 

also Barnes, 890 F.3d at 916 (“We look to the record to determine whether the district 

court satisfactorily engaged and examined the factors in a holistic fashion. But the court 

need not rely on every single factor.”). The district court did not abuse its discretion by 

considering Mr. Dominguez’s prior offense in analyzing multiple factors, nor by placing 

significant weight on the serious nature of that prior offense. 

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Indeed, the Guidelines themselves anticipate that past criminal conduct may 

justify a sentence above the Guidelines range. Under U.S.S.G. § 2L1.2(b)(2), where a 

defendant engaged in criminal conduct resulting in a felony conviction prior to his first 

order of deportation or removal, his offense level for illegal reentry will increase by an 

amount calculated based on the length of the sentence imposed for the prior felony 

conviction. However, comment six to U.S.S.G. § 2L1.2 further explains “[t]here may be 

cases in which the offense level provided by an enhancement in subsection (b)(2) 

. . . substantially understates or overstates the seriousness of the conduct underlying the 

prior offense.” When “the length of the sentence imposed does not reflect the seriousness 

of the prior offense,” “a departure may be warranted.” U.S.S.G. § 2L1.2 cmt. 6. 

Here, Mr. Dominguez received a sentence of 48 months’ imprisonment for his 

2008 criminal sexual conduct conviction. Thus, he would have the same Guidelines

sentencing range of 15 to 21 months, as any other defendant who was sentenced to 48 

months’ imprisonment for a felony, regardless of the underlying conviction. U.S.S.G. 

§ 2L1.2(b)(2)(B). The Guidelines for illegal reentry, however, allowed the district court 

to look to the nature of a past offense and the prior sentence in determining whether it 

reflected the seriousness of that prior conviction. Where it did not, the Guidelines allow 

the district court to include that information in its assessment of whether the Guidelines 

sentencing range, based in part on that prior sentence, is appropriate.

Mr. Dominguez further argues that “because, by definition, every single defendant 

who violates 8 U.S.C. § 1326(b)(2) has committed an aggravated felony and then 

committed the subsequent criminal act of re-entering the United States,” the fact that a 

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reentry offender has a prior aggravated felony is not a rational justification for imposing 

an upward variance in sentencing. Appellant’s Br. at 19. But “[d]istrict courts have broad 

discretion to consider particular facts in fashioning a sentence under 18 U.S.C. § 3553(a), 

even when those facts are already accounted for in the advisory [G]uidelines range.” 

Barnes, 890 F.3d at 921 (first alteration in original) (quotation marks omitted); see also 

Gross, 44 F.4th at 1304 (holding that the court did not abuse its discretion in considering 

the defendant’s offense conduct when imposing an upward variance, even though a fourlevel Guidelines enhancement already accounted for the offense conduct); United States 

v. Smart, 518 F.3d 800, 808 (10th Cir. 2008) (“To perform their individualizing role, 

district courts are now allowed to contextually evaluate each § 3553(a) factor, including 

those factors the relevant [G]uideline(s) already purport to take into account . . . .”). Thus, 

it was not an abuse of discretion for the district court to impose an upward variance based 

upon Mr. Dominguez’s criminal history. See, e.g., Lente, 759 F.3d at 1166–67 (holding 

that the district court did not err in considering the facts leading to the defendant’s 

multiple arrests in imposing an upward variance, even though the defendant was not 

assessed any criminal history points).

Indeed, for purposes of sentencing, “[n]o limitation should be placed on the 

information [a court may consider] concerning the background, character, and conduct of 

a person.” United States v. Mateo, 471 F.3d 1162, 1167 (10th Cir. 2006) (first alteration 

in original) (internal quotation marks omitted). Outside of the conviction itself, we 

require sentencing courts to “carefully consider the facts contained in the [presentence 

report] when evaluating the § 3553(a) sentencing factors,” including the underlying facts 

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of prior arrests and convictions. Id.; see also Gross, 44 F.4th at 1305. The Guidelines 

explicitly consider the possibility of upward variances when “reliable information 

indicates that the defendant’s criminal history category substantially under-represents the 

seriousness of the defendant’s criminal history or the likelihood that the defendant will 

commit other crimes.” U.S.S.G. § 4A1.3(a)(1). Here, the district court had information 

that both Mr. Dominguez’s criminal history and his risk of recidivism may have been 

understated. 

The Government filed two Rule 28(j) letters pointing us to two cases we recently 

decided involving claims of substantive unreasonableness in sentencing an illegal reentry 

defendant. In the first case, United States v. Malla-Calle, we affirmed an upward variance 

in an illegal reentry case when the defendant had a prior conviction for sexual assault of a 

minor and the district court explained “that although it was accounting for Malla-Calle’s 

‘past behavior in imposing a sentenc[e] that will deter [criminal conduct] and protect the 

public,’ it was ‘sentencing [him] only for th[e] crime’ of unlawful reentry.” No. 22-2074, 

2023 WL 4446426, at *5 (10th Cir. July 11, 2023). As the Government notes, the district 

court here made a similar statement that, “[t]o be clear, I’m sentencing the defendant only 

for this crime, but I am considering his past behavior in imposing a sentence, pursuant to 

the 3553(a) factors.” ROA Vol. 3 at 36. In a Rule 28(j) letter filed in response to the 

Government on July 21, 2023, Mr. Dominguez argued Malla-Calle is distinguishable 

because, there, the defendant had likely violated the conditions of his sex offense 

probation, he had questioned whether the conduct underlying his sex offense was wrong, 

and the district court had tied its concerns about the offense into a comprehensive review 

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of the § 3553(a) factors. We are not convinced the cases are dissimilar. Like in MallaCalle, the district court here evaluated Mr. Dominguez’s past conduct under all the 

applicable § 3553(a) factors and we may not reweigh those factors in reviewing his 

sentence. See Blair, 933 F.3d at 1274. 

The Government also points to United States v. Caivinagua-Sanchez, in which we 

held the district court did not abuse its discretion by imposing a substantial upward 

variance for an illegal reentry offense based on the defendant’s prior misdemeanor 

conviction related to sexual abuse of a minor. There, like here, the district court asserted 

that “the [G]uidelines under-represented the seriousness of [the defendant’s] prior 

offense.” No. 22-2128, 2023 WL 4560222, at *6 (10th Cir. July 17, 2023). We concluded 

that a district court does not abuse its discretion by varying upward when it believes that 

the Guidelines underrepresent the seriousness of a prior offense, so long as the court 

explains its reasons. Id. at *4, *6. Finally, we emphasized in Caivinagua-Sanchez, as we 

do here, that we are not permitted to simply reweigh the § 3553(a) factors on appeal. Id.

at *5. Mr. Dominguez has offered no convincing reason to depart from the reasoning of 

Caivinagua-Sanchez and Malla-Calle here.

Mr. Dominguez also relies on a Fourth Circuit case, United States v. Tucker, to 

support his assertion that upward variances must be supported by “compelling reasons.” 

473 F.3d 556, 557 (4th Cir. 2007). But this is not the rule in the Tenth Circuit, and this 

approach was rejected by the Supreme Court in a separate case mere months after 

Tucker’s publication. Gall, 552 U.S. at 47 (“We reject . . . an appellate rule that requires 

‘extraordinary’ circumstances to justify a sentence outside the Guidelines range.”). In this 

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circuit, “although a district court must provide reasoning sufficient to support the chosen 

variance, it need not necessarily provide ‘extraordinary’ facts to justify any statutorily 

permissible sentencing variance, even one as large as the 100% variance in Gall.” Smart, 

518 F.3d at 807. We have since expressly rejected Mr. Dominguez’s argument, stating,

“[t]o the extent that [the appellant] is arguing that we must find ‘compelling reasons’ to 

support so large a variance, this approach is no longer permissible” after Gall and Smart. 

United States v. Pinson, 542 F.3d 822, 837 (10th Cir. 2008) (citation omitted). There is 

no “mathematical formula that uses the percentage of a departure as the standard for 

determining the strength of the justifications required for a specific sentence.” Gall, 552 

U.S. at 47. Therefore, Mr. Dominguez’s argument that his sentence is substantively 

unreasonable because the district court failed to provide “compelling reasons” for the 

variance is without merit. 

The district court properly considered the seriousness of the 2008 criminal sexual 

conduct conviction in determining an appropriate sentence for Mr. Dominguez’s illegal 

reentry. And the court acted within its discretion to assess that factor despite it being 

accounted for in calculating the Guidelines sentencing range.

2. Consideration of Mitigating Factors

Mr. Dominguez further argues that the upward variance imposed by the district 

court is substantively unreasonable because it fails to consider “substantial mitigating 

evidence” presented during his sentencing hearing, and therefore “does not reflect a 

consideration of multiple relevant sentencing factors.” Appellant’s Br. at 20–21. 

Specifically, Mr. Dominguez argues that, considering significant mitigating factors, the 

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sentence does not adequately reflect (1) the nature and circumstances of his offense, 

(2) his history and characteristics, and (3) the unwarranted sentence disparity resulting 

from the upward variance. However, the district court explicitly analyzed all three of 

these factors:

I’m considering all of [Mr. Dominguez’s] arguments, including but not 

limited to . . . that [Mr. Dominguez] was coming back to the United States 

to seek a better life for himself and his family, as he was having economic 

problems in Mexico and fleeing violence; that [Mr. Dominguez’s] reentry

case did not involve violence or drugs; . . . [and] that [Mr. Dominguez] has

remained out of the country for 12 years since his last deportation . . . .

ROA Vol. 3 at 32. The court reasoned that these mitigating factors were nevertheless 

outweighed by other relevant § 3553(a) factors, such as Mr. Dominguez’s history and 

characteristics and the need to deter criminal conduct and to protect the public.

Mr. Dominguez next argues that his sentence “fails to reflect [his] personal history 

and characteristics.” Appellant’s Br. at 22. With respect to this factor, Mr. Dominguez 

notes that he “had been diagnosed with a tumor in his testicle” at the time of sentencing, 

received significant support from his family and community in the form of letters 

speaking to his character, was the sole financial support for his family, “lived in Mexico 

for nearly twelve years without committing any additional crimes, and [had] successfully 

abstained from the substance use that had contributed to his original offense.” Id. at 22‒

23.

Again, the district court expressly analyzed Mr. Dominguez’s personal history and 

characteristics and considered each of the mitigating facts presented by Mr. Dominguez. 

The court stated: 

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I’m considering that [Mr. Dominguez] has remained out of the country for 

12 years since his last deportation, and there’s evidence he’s not had any 

contact with the criminal system in Mexico since that time. I’m considering 

[Mr. Dominguez] has now remarried and has two stepchildren and a new 

son. I’m considering [Mr. Dominguez] has stopped consuming alcohol and 

that that may decrease the chance of him committing further sexual 

assaults. . . . [Mr. Dominguez] works in Mexico and has the respect of 

many members of his community and family . . . The Court has considered 

the argument that [Mr. Dominguez’s] family is suffering in his absence, 

especially his children.

ROA Vol. 3 at 32‒33.

While acknowledging these mitigating factors, the court noted that 

Mr. Dominguez’s “history includes the [2008] conviction . . . of sexual assault against his 

underaged stepdaughter.” Id. at 33‒34. Considering both mitigating and aggravating 

factors, the court concluded that Mr. Dominguez’s history and characteristics weighed in 

favor of imposing an upward variance. Thus, the district court properly considered the 

mitigating factors presented by Mr. Dominguez and did not abuse its discretion by

nevertheless varying upward. 

3. Sentencing Disparity

Finally, Mr. Dominguez argues that his sentence “creates an unwarranted disparity 

with those of other similarly situated offenders,” invoking § 3553(a)(6) and its role in the 

district court’s sentencing determination. Appellant’s Br. at 24. Mr. Dominguez cites data 

from the U. S. Sentencing Commission’s Judiciary Sentencing Information (“JSIN”) to 

support the proposition that most offenders with a final offense level of 13 and a criminal 

history category of II receive an average of 12 months imprisonment, meaning they 

“receive a downward variance or departure, not an upward variance.” Id. As the 

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Government correctly points out, though, the JSIN statistics cited by Mr. Dominguez are 

not probative of the question whether the upward variance in his case creates an 

unwarranted disparity. “[The § 3553(a)(6)] sentencing factor, after all, specifically directs 

the district court to avoid disparities ‘among defendants with similar records who have 

been found guilty of similar conduct.’” Malla-Calle, 2023 WL 4446426, at *4 (quoting

18 U.S.C. § 3553(a)(6)). Recall that the Guidelines range for unlawful reentry is based on 

the length of the sentence received for the prior offense, rather than the conduct 

underlying the conviction. See U.S.S.G. § 2L1.2(b)(2). Thus, district courts must look at 

the underlying conduct of the prior convictions to properly analyze whether there is an 

unwarranted sentencing disparity among those found guilty of similar conduct. See 18 

U.S.C. § 3553(a)(6); U.S.S.G. § 2L1.2(b)(2) cmt. 6.

The district court explained that, even if there was a sentencing disparity as to 

other reentry defendants with a prior felony conviction, such disparity was warranted by 

the seriousness of Mr. Dominguez’s prior conviction. “Our sentencing scheme seeks to 

eliminate not all sentencing disparities, but only ‘unwarranted’ disparities.” Lente, 759 

F.3d at 1169 (internal quotation marks omitted). “[T]here is no ‘mathematical formula 

that uses the percentage of a [variance] as the standard for determining the strength of the 

justifications required for a specific sentence.’” Barnes, 890 F.3d at 921 (quoting Gall, 

552 U.S. at 47). Where the data cited by Mr. Dominguez was not comprised of reentry 

defendants with prior sexual felonies, he has not established an unwarranted disparity.

In further support of his argument, Mr. Dominguez seeks to distinguish his case 

from three cases in which we upheld substantial upward variances (Worku, Gantt, and

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Pinson) and two Tenth Circuit criminal reentry cases in which we upheld upward 

variances (Caballero-Anaya and Marquez-Pineda). United States v. Worku, 800 F.3d 

1195, 1208 (10th Cir. 2015); United States v. Gantt, 679 F.3d 1240, 1250‒51 (10th Cir. 

2012); Pinson, 542 F.3d at 836; United States v. Caballero-Anaya, 807 F. App’x 837, 

843–45 (10th Cir. 2020) (unpublished); United States v. Marquez-Pineda, 318 F. App’x 

673, 674–76 (10th Cir. 2009) (unpublished). Mr. Dominguez argues that, because these 

cases involved aggravating factors that are not present in his case, they demonstrate that 

the district court’s justification for an upward variance here is inadequate. But the district 

court was required to consider the facts and circumstances of Mr. Dominguez’s case 

individually. The absence of a factor present in another defendant’s criminal history is 

simply not relevant to the district court’s exercise of its discretion in sentencing 

Mr. Dominguez.

Further, Worku, Gantt, and Pinson involved upward variances that were 

substantially longer than the 15-month variance imposed in Mr. Dominguez’s case. 

Worku, 800 F.3d at 1198, 1207 (high end of the Guidelines range was 36 months; district 

court imposed 264-month sentence); Gantt, 679 F.3d at 1243–44 (Guidelines sentence 

was 84 months, the statutory minimum sentence; district court imposed 240-month 

sentence); Pinson, 542 F.3d at 833 (high end of the Guidelines range was 105 months; 

district court imposed 240-month sentence). Marquez-Pineda and Caballero-Anaya also 

involved more significant upward variances than the sentence here. Caballero-Anaya, 

807 F. App’x at 840 (high-end of the Guidelines range was 21 months; district court 

imposed 48-month sentence); Marquez-Pineda, 318 F. App’x at 674 (high-end of the 

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Guidelines range was 30 months; district court imposed 60-month sentence). “We find it 

uncontroversial that a major departure should be supported by a more significant 

justification than a minor one.” Gall, 552 U.S. at 50. Where these upward variances were 

more significant than the 15-month upward variance in Mr. Dominguez’s case, as the 

Government states, it is “unsurprising[], then, if [Mr. Dominguez] could point to 

aggravating facts present in those cases that are absent here.” Appellee’s Br. at 20. 

The district court properly explained its decision to vary upward and based that 

decision on appropriate consideration of the § 3553(a) factors. Its weighing of those 

factors and resulting sentencing decision was substantively reasonable. 

III. CONCLUSION

Because we conclude the district court did not abuse its discretion, we AFFIRM.

Entered for the Court

Carolyn B. McHugh

Circuit Judge

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