United States v. Apolonio Torres-Reyes, 952 F.3d 147

Background

Apolonio Torres‑Reyes, a Mexican national, first entered the U.S. illegally in 1986; he was convicted in California in 1995 of three drug offenses and deported that year.
He later reentered the U.S. (undetected in 2001), lived in North Carolina, and incurred additional state criminal charges and convictions (2017 state sentences for earlier matters and a 2016 arrest showing illegal reentry).
In federal court he pled guilty to illegal reentry under 8 U.S.C. § 1326; the PSR counted the 1995 convictions, producing an offense level 17 and Criminal History Category IV (Guidelines range 37–46 months).
Torres‑Reyes moved for a downward departure/variance, arguing the 1995 convictions were ‘‘stale’’ (outside the 15‑year lookback if the offense commenced when he was "found" in 2016) and that counting them over‑represents his criminal history and creates unwarranted disparities.
The district court rejected his legal objection to the criminal‑history calculation, adopted the PSR, and sentenced him to 37 months (bottom of the Guidelines range), consecutive to his state sentence.
On appeal the Fourth Circuit vacated and remanded, holding the sentencing transcript fails to show the district court considered Torres‑Reyes’s non‑frivolous equitable arguments for a variance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court adequately considered non‑frivolous equitable arguments for a downward variance based on "stale" 1995 convictions and over‑representation of criminal history	Torres‑Reyes: Even if the law permits counting the 1995 convictions, the court should grant a variance because including them over‑represents his record and creates disparities	Government: The defendant’s recidivism and repeated illegal reentries justify a within‑range sentence; court’s discussion addressed the objection	Vacated and remanded — record does not assure the district court separately considered the non‑frivolous variance arguments
Whether the district court properly addressed the legal objection to counting the 1995 convictions	Torres‑Reyes: The illegal‑reentry offense begins when the defendant is "found" (2016), thus 1995 convictions fall outside the 15‑year lookback	Government: The legal interpretation relied on by the court supports counting the convictions; court explicitly rejected the objection	The court adequately considered and rejected the legal objection at sentencing (not contested on appeal), but that alone did not excuse failure to address equitable variance arguments
Whether the district court’s brief adoption of the PSR and statement it considered §3553(a) suffices as explanation for the sentence	Torres‑Reyes: A terse adoption of the PSR and cursory statements do not demonstrate an individualized §3553(a) analysis of his non‑frivolous arguments	Government: Adoption of the PSR and general reference to §3553(a) can suffice for a within‑range sentence	Held insufficient here — the limited explanation did not allow appellate review of whether the court weighed the defendant’s distinct variance arguments

Key Cases Cited

Gall v. United States, 552 U.S. 38 (2007) (standard of review and requirement to consider §3553(a) factors)
United States v. Ross, 912 F.3d 740 (4th Cir. 2019) (district court must address non‑frivolous reasons for a different sentence)
United States v. Blue, 877 F.3d 513 (4th Cir. 2017) (individualized assessment and consideration of non‑frivolous downward‑departure arguments)
Chavez‑Meza v. United States, 138 S. Ct. 1959 (2018) (adequacy of sentencing explanation depends on case complexity)
United States v. Lynn, 592 F.3d 572 (4th Cir. 2010) (cannot infer consideration of arguments from a sparse record)
United States v. Montes‑Pineda, 445 F.3d 375 (4th Cir. 2006) (context can sometimes supply omitted reasoning)
United States v. Carter, 564 F.3d 325 (4th Cir. 2009) (appellate court may not guess at district court’s rationale)
United States v. Thompson, 595 F.3d 544 (4th Cir. 2010) (contextual clarity may suffice in some sentencing explanations)
United States v. Kotteakos, 328 U.S. 750 (1946) (harmless‑error principles referenced for sentencing error analysis)
United States v. Booker, 543 U.S. 220 (2005) (Sentencing Reform Act and advisory Guidelines framework)