United States v. Abel Sabino-Hernandez, 713 F. App'x 868

Abel Sabino-Hernandez, a Mexican national, pleaded guilty to illegal reentry under 8 U.S.C. § 1326 and faced a guidelines range of 0–6 months (offense level 6, CH I) based on the PSI.
PSI recited multiple encounters/entries: CBP encounters in 1999 (voluntary return), a 2001 return to Mexico, U.S. arrests/convictions in 2003–2004, CBP encounters in October 2010 (voluntary departure then expedited removal days later), and a 2016 Georgia arrest where ICE took custody.
At sentencing the prosecutor stated Sabino-Hernandez had entered or attempted to enter the U.S. six times and that the government had removed him on four occasions; the defense did not object to those statements at the hearing.
The government argued the guidelines understated seriousness and sought 24 months; the district court imposed a 20‑month sentence (a 14‑month upward variance) citing repeated reentries and risk of recidivism.
On appeal Sabino-Hernandez argued prosecutorial misconduct (misstatements about entries/removals) and that the sentence was procedurally unreasonable because the court relied on those misstatements.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct based on miscounting entries/removals	Prosecutor misstated number of illegal entries and removals, constituting misconduct	Prosecutor’s statements were supported by PSI and not materially misstated; any imprecision was harmless	No reversible error: counts of six entries were supported; mischaracterization of removals (voluntary returns vs removals) did not prejudice defendant
Procedural reasonableness — reliance on allegedly erroneous facts	Court relied on prosecutor’s misstatements when imposing an upward variance, making sentence procedurally unreasonable	District court reasonably relied on accurate factual record (PSI) and did not rely on any clearly erroneous fact	Affirmed: factfinding not clearly erroneous; even assuming some inaccuracy, court considered voluntary departures and removals and did not rely on an erroneous premise
Standard of review and burden to show prejudice	(Implicit) Error should be corrected	Because defendant did not object below, plain‑error review applies; to prevail must show error was plain and affected substantial rights	Plain‑error standard not met: no clear material misstatement and no reasonable probability outcome would differ absent statement

United States v. Merrill, 513 F.3d 1293 (11th Cir. 2008) (standards for prosecutorial misconduct and prejudice at sentencing)
Molina‑Martinez v. United States, 136 S. Ct. 1338 (2016) (plain‑error test and showing that error affected substantial rights at sentencing)
Gall v. United States, 552 U.S. 38 (2007) (abuse‑of‑discretion review of sentencing and that a sentence based on clearly erroneous facts can be procedurally unreasonable)
United States v. Robertson, 493 F.3d 1322 (11th Cir. 2007) (clear‑error standard for factual findings at sentencing)
United States v. Hands, 184 F.3d 1322 (11th Cir. 1999) (material misstatement as basis for improper prosecutorial remark)
United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (application of § 3553(a) factors and justification for variance)