When a § 1326 Sentence Rises Above the Guidelines

On November 4, 2026, the Fifth Circuit affirmed a 21-month prison sentence for illegal reentry after deportation. In United States v. Hernandez-Vargas, No. 26-50198, a per curiam opinion that is not for publication, the court held that the Western District of Texas did not abuse its discretion when it imposed a term above the advisory Sentencing Guidelines range. Read the decision (PDF). Hernandez-Vargas had pleaded guilty to 8 U.S.C. § 1326.

What happened

Pedro Hernandez-Vargas pleaded guilty in the Western District of Texas, case No. 2:25-cr-2568-1, to one count of illegal reentry. Judges Haynes, Graves, and Ramirez decided the appeal on the summary calendar without oral argument.

The district court sentenced him to 21 months in prison. That term was above the guidelines range calculated in his case. On appeal, he argued only that the sentence was substantively unreasonable.

What § 1326 covers

Section 1326 is the federal illegal-reentry statute. In general terms, it applies when a noncitizen who was removed from the United States enters, attempts to enter, or is found in the country without permission. 8 U.S.C. § 1326(a). The baseline penalty in subsection (a) can include up to two years in prison. Subsections (b)(1) and (b)(2) raise the maximum when the person has certain prior convictions. The opinion cites 8 U.S.C. § 1326(b)(1) and describes a ten-year statutory maximum in this case. Twenty-one months is far below that ceiling.

The guidelines treat illegal reentry under U.S.S.G. § 2L1.2. That guideline starts with a base offense level and adds levels for certain qualifying prior convictions; the timing of the first removal order determines which conviction-based provision applies, but removal history is not a standalone enhancement. A judge may still weigh repeated removals under § 3553(a). The result is an advisory range under Chapter Five of the manual effective November 1, 2026. The opinion does not repeat the offense level, criminal history category, or range from the district court. It states only that the sentence was above that range.

How the Fifth Circuit reviewed the sentence

After United States v. Booker, 543 U.S. 220 (2005), the guidelines are advisory. A district court must still calculate the range, but it may sentence above or below it after considering the factors in 18 U.S.C. § 3553(a). Those factors include the nature of the offense, the history of the person, the need for the sentence to reflect seriousness and to deter, and the need to avoid unwarranted disparities.

On appeal, the Fifth Circuit reviews substantive reasonableness for an abuse of discretion. It looks at the totality of the circumstances, including how far the sentence varied from the range. United States v. Gerezano-Rosales, 692 F.3d 393, 400 (5th Cir. 2012).

Here, the appeals court said the district court relied on Hernandez-Vargas's immigration history, his quick return to the United States after removal, pending criminal charges, and his likelihood of recidivism. Those are § 3553(a) considerations about the person and the risk of future conduct.

Criminal history and a variance

Hernandez-Vargas's criminal history was already part of the guidelines calculation. He still argued that the above-range sentence was unreasonable. The Fifth Circuit rejected that claim.

The court explained that a judge may rely on criminal history at sentencing even when that history is already baked into the guideline math. United States v. Lopez-Velasquez, 526 F.3d 804, 807 (5th Cir. 2008); 18 U.S.C. § 3553(a)(1). Section 3553(a)(1) asks the court to consider the history and characteristics of the defendant. Lopez-Velasquez stands for the proposition that those same facts can support a variance.

The opinion also compared this sentence to variances the Fifth Circuit has upheld before. It cited Lopez-Velasquez, 526 F.3d at 805–07, and United States v. Herrera-Garduno, 519 F.3d 526, 531–32 (5th Cir. 2008). It concluded that 21 months was substantively reasonable and affirmed.

From my perspective

This is a short reasonableness decision, but it packs in themes that show up often in § 1326 cases. The guidelines range is the starting point, not the finish line. Once the court calculates the range, § 3553(a) still allows a higher sentence when the judge finds the range does not capture the person's history or the risk of repeat conduct.

The pending criminal charges and the quick return after removal are exactly the kind of facts prosecutors emphasize in illegal-reentry sentencings. They go to recidivism and to whether the prior removal order meant anything in practice. The Fifth Circuit treated those as permissible reasons for an upward variance.

The Lopez-Velasquez point matters for anyone comparing the guideline range to the final number. Double-counting is a common objection, but this opinion reaffirms that history can inform both the guidelines and the variance analysis. That does not make every above-range sentence safe on appeal, but it makes clear that an above-range sentence can survive review when it rests on record facts like these. The opinion does not state the guideline range, so it does not show how far above the range the sentence was.

For background on the statute, see federal immigration crimes. For a separate § 1326 issue at the Supreme Court, see Herrera-Salazar and repeat illegal-reentry charges. The federal appeal process explains how sentencing objections and the appellate record interact.