Petition for Writ of Certiorari — Edgardo Esteras, Petitioner v. United States
Supreme Court briefMay 15, 2024
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No.___________
In the
Supreme Court of the United States
_________________________
EDGARDO ESTERAS,
TIMOTHY MICHAEL JAIMEZ FKA TIMOTHY M. WATTERS, AND
TORIANO A. LEAKS, JR.,
v.
Petitioners,
UNITED STATES OF AMERICA,
Respondent.
________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
__________________________
PETITION FOR A WRIT OF CERTIORARI
__________________________
JOSEPH MEDICI
Federal Public Defender,
Southern District of Ohio
KEVIN M. SCHAD
250 E. 5th Street, Suite 350
Cincinnati, OH 45202
(513) 929-4834
kevin_schad@fd.org
May 13, 2024
STEPHEN C. NEWMAN
Federal Public Defender,
Northern District of Ohio
CHRISTIAN J. GROSTIC
Counsel of Record
1660 W. 2nd Street, Suite 750
Cleveland, Ohio 44113
(216) 522-4856
christian_grostic@fd.org
Counsel for Petitioners
QUESTION PRESENTED
The supervised-release statute, 18 U.S.C. § 3583(e), lists factors from 18
U.S.C. § 3553(a) for a court to consider when sentencing a person for violating a supervised-release condition. In that list, Congress omitted the factors set forth in section 3553(a)(2)(A)—the need for the sentence to reflect the seriousness of the offense,
promote respect for the law, and provide just punishment for the offense. The question presented is:
Even though Congress excluded section 3553(a)(2)(A) from section 3583(e)’s list of
factors to consider when revoking supervised release, may a district court rely on the
section 3553(a)(2)(A) factors when revoking supervised release?
Five circuit courts of appeals, including the panel orders below, have concluded
that district courts may rely on the section 3553(a)(2)(A) factors. Four circuit courts
of appeals, plus the dissents from orders denying rehearing en banc below, have concluded that they may not.
i
TABLE OF CONTENTS
QUESTION PRESENTED ........................................................................................................ i
TABLE OF CONTENTS ........................................................................................................... ii
TABLE OF AUTHORITIES .................................................................................................... iv
INTRODUCTION ....................................................................................................................... 1
OPINIONS AND ORDERS BELOW ...................................................................................... 2
JURISDICTION.......................................................................................................................... 3
STATUTES INVOLVED ........................................................................................................... 4
STATEMENT OF THE CASE ................................................................................................. 7
1. Edgardo Esteras’ Revocation Proceedings .......................................................... 7
2. Timothy Jaimez’ Revocation Proceedings ........................................................... 9
3. Toriano Leaks’ Revocation Proceedings ............................................................ 10
REASONS FOR GRANTING THE PETITION ................................................................. 12
I. The panel decisions and dissents from orders denying rehearing en
banc further entrench a deep and pervasive circuit split regarding
how to interpret 18 U.S.C. § 3583(e). ................................................................. 12
II. The question presented raises an important and recurring issue fundamental to federal supervised-release-revocation law................................. 15
III.The decisions below are wrong. ........................................................................... 16
IV. These cases are ideal vehicles for resolving the question presented. ......... 20
CONCLUSION .......................................................................................................................... 21
ii
APPENDIX A: United States v. Esteras, Sixth Circuit order, August 16, 2023........ 1a
APPENDIX B: United States v. Esteras, Sixth Circuit amended order,
December 20, 2023 ....................................................................................................... 4a
APPENDIX C: United States v. Esteras, Northern District of Ohio order,
May 9, 2023 .................................................................................................................. 14a
APPENDIX D: United States v. Esteras, Sixth Circuit order denying petition for
rehearing en banc, December 20, 2023 .................................................................. 19a
APPENDIX E: United States v. Esteras, Sixth Circuit order denying petition for
rehearing en banc, March 7, 2024........................................................................... 30a
APPENDIX F: United States v. Esteras, Northern District of Ohio hearing
transcript (excerpts), April 18, 2023....................................................................... 35a
APPENDIX G: United States v. Jaimez, Sixth Circuit opinion, March 12, 2024 .... 53a
APPENDIX H: United States v. Jaimez, Northern District of Ohio order,
February 24, 2023....................................................................................................... 59a
APPENDIX I: United States v. Jaimez, Northern District of Ohio hearing
transcript (excerpts), February 17, 2023............................................................... 60a
APPENDIX J: United States v. Leaks, Sixth Circuit order, March 6, 2024 ............. 74a
APPENDIX K: United States v. Leaks, Northern District of Ohio order,
June 29, 2023 ............................................................................................................... 76a
APPENDIX L: United States v. Leaks, Northern District of Ohio hearing
Transcript, June 29, 2023 ......................................................................................... 77a
iii
TABLE OF AUTHORITIES
CASES
Baldwin v. New York , 399 U.S. 66 (1970) ........................................................................... 18
Concepcion v. United States , 597 U.S. ---, 142 S. Ct. 2389 (2022) ................................ 17
Duncan v. Louisiana, 391 U.S. 145 (1968) ................................................................... 18, 19
Johnson v. United States , 529 U.S. 694 (2000)........................................................... 18, 19
Russello v. United States, 464 U.S. 16 (1983).................................................................... 16
Tapia v. United States , 564 U.S. 319 (2011) ...................................................................... 17
United States v. Booker, 63 F.4th 1254 (10th Cir. 2023) ......................................... 13, 14
United States v. Clay, 752 F.3d 1106 (7th Cir. 2014) ...................................................... 12
United States v. Crudup, 461 F.3d 433 (4th Cir. 2006) ................................................... 12
United States v. Esteras , 88 F.4th 1163 (6th Cir. 2023) ................................................... 2
United States v. Esteras , 88 F.4th 1170 (6th Cir. 2023) ................................................... 2
United States v. Esteras , 95 F.4th 454 (6th Cir. 2024)...................................................... 3
United States v. Haymond, 588 U.S. ---, 139 S. Ct. 2369 (2019) ............................ 18, 20
United States v. Jaimez, 95 F.th 1004 (6th Cir. 2024)....................................................... 3
United States v. Lewis , 498 F.3d 393 (6th Cir. 2007) .......................................8, 9, 12, 15
United States v. Miller, 634 F.3d 841 (5th Cir. 2011) ...................................................... 12
United States v. Miqbel, 444 F.3d 1173 (9th Cir. 2006) ..................................... 13, 16, 19
United States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014) ....................................... 14
United States v. Vargas-Dávila, 649 F.3d 129 (1st Cir. 2011) ....................................... 12
United States v. Williams, 443 F.3d 35 (2d Cir. 2006)..................................................... 12
iv
United States v. Young, 634 F.3d 233 (3d Cir. 2011) ....................................................... 12
S T AT U T ES
18 U.S.C. § 3231 .......................................................................................................................... 7
18 U.S.C. § 3553 ............................................................................................. 1, 6, 8, 18, 19, 20
18 U.S.C. § 3583 ............................................................................................. 1, 5, 8, 12, 16, 17
28 U.S.C. § 1254 .......................................................................................................................... 4
Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 1837................. 17
RULE
SUP. CT. R. 12 ........................................................................................................................... 2, 7
A DDIT ION AL A U T HORIT IES
Dave S. Sidhu, Cong. Research Serv., LSB10929, Can Retribution Justify the
Revocation of Supervised Release? Courts Disagree (2023) ............................... 13
S. Rep. No. 98-225 (1983) ........................................................................................... 17, 19, 20
U.S. Courts, Judicial Business 2023 .................................................................................... 15
U.S. Sentencing Commission, Federal Probation and Supervised Release
Violations (2020) ........................................................................................................... 15
v
INTRODUCTION
This case presents an established and acknowledged circuit split that affects
all persons facing supervised-release-revocation proceedings: what factors the court
may consider. The statute, 18 U.S.C. § 3583(e), instructs courts to consider “the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6),
and (a)(7).” 18 U.S.C. § 3583(e). Congress omitted section 3553(a)(2)(A) from that list:
the need “to reflect the seriousness of the offense, promote respect for the law, and
provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A). 1
Despite the omission, five circuit courts of appeals, including the panel decisions below, have concluded that courts may rely on the section 3553(a)(2)(A) factors
when revoking supervised release. Four circuit courts of appeals, plus the dissents
from the orders denying rehearing en banc below, have concluded that they may not.
The question presented is important, and these cases are excellent vehicles for
resolving it. Edgardo Esteras, Timothy Jaimez, and Toriano Leaks are among the
thousands of people each year who have their supervised release revoked. In each of
their cases, the district court when imposing its sentence expressly relied on one or
more of the section 3553(a)(2)(A) factors. In each of their cases, the Sixth Circuit affirmed, holding that courts may rely on the need to punish and the other section
3553(a)(2)(A) factors when revoking supervised release.
1 Congress also left out section 3553(a)(3), “the kinds of sentences available.” 18 U.S.C. § 3553(a)(3).
Section 3583(e) itself lists the kinds of sentences and other supervised-release modifications available in revocation proceedings, making section 3553(a)(3) unnecessary. See 18 U.S.C. § 3583(e).
1
The decisions below are wrong. The statute’s text, this Court’s precedent, the
legislative history, and background constitutional principles all indicate that a district court may not rely on the section 3553(a)(2)(A) factors when revoking supervised
release. By excluding section 3553(a)(2)(A) from section 3583(e)’s list of factors, Congress drew a careful line instructing courts to rely on punishment and factors related
to punishment only when sentencing defendants for their initial offenses, consistent
with constitutional protections for those facing criminal punishment. The decisions
below erased that line.
Edgardo Esteras, Timothy Michael Jaimez (fka Timothy M. Watters), and Toriano A. Leaks, Jr., therefore respectfully petition for a writ of certiorari to review the
judgments of the U.S. Court of Appeals for the Sixth Circuit. Under Supreme Court
Rule 12(4), they join in a single petition because “two or more judgments are sought
to be reviewed on a writ of certiorari to the same court and involve identical or closely
related questions.” SUP. CT. R. 12.
OPINIONS AND ORDERS BELOW
In United States v. Esteras, Case No. 23-3422, the U.S. Court of Appeals for
the Sixth Circuit’s initial order is unpublished. See App. at 1a-3a. After Esteras filed
a petition for rehearing en banc, the panel issued an amended order, which is published at 88 F.4th 1163 (6th Cir. 2023). See App. at 4a-13a. The court also denied
rehearing en banc in an order with two dissenting opinions, which is published at 88
F.4th 1170 (6th Cir. 2023). See App. at 19a-29a. The court’s order denying Esteras’
2
second petition for rehearing en banc, with two dissenting opinions, is published at
95 F.4th 454 (6th Cir. 2024). See App. at 30a-34a. The order of the U.S. District Court
for the Northern District of Ohio revoking Esteras’ supervised release and the hearing transcript are unpublished. See App. at 14a-18a; App. at 35a-52a.
In United States v. Timothy Michael Jaimez, Case No. 23-3189, the U.S. Court
of Appeals for the Sixth Circuit’s opinion is published at 95 F.4th 1004 (6th Cir. 2024).
See App. at 53a-58a. The order of the U.S. District Court for the Northern District of
Ohio revoking Jaimez’ supervised release and the hearing transcript are unpublished. See App. at 59a; App. at 60a-73a.
In United States v. Toriano Leaks, Jr., Case No. 23-3547, the U.S. Court of
Appeals for the Sixth Circuit’s order is unpublished. See App. at 74a-75a. The order
of the U.S. District Court for the Northern District of Ohio revoking Leaks’ supervised
release and the hearing transcript are unpublished. See App. at 76a; App. at 77a-86a.
JURISDICTION
In United States v. Edgardo Esteras, Case No. 23-3422, the court of appeals
initially entered judgment on August 16, 2023. Esteras timely filed a petition for rehearing en banc, which the court denied on December 20, 2023, with an amended
order and judgment. Esteras timely filed a second petition for rehearing en banc,
which the court denied on March 7, 2024.
In United States v. Timothy Michael Jaimez fka Timothy M. Watters, Case No.
23-3189, the court of appeals entered judgment on March 12, 2024.
3
In United States v. Toriano Leaks, Jr., Case No. 23-3547, the court of appeals
entered judgment on March 6, 2024.
This Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTES INVOLVED
Section 3583(e) of Title 18, U.S. Code, provides:
MODIFICATION OF CONDITIONS OR REVOCATION.—The court may, after
considering the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C),
(a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7)—
(1) terminate a term of supervised release and discharge the defendant released at any time after the expiration of one year of supervised
release, pursuant to the provisions of the Federal Rules of Criminal
Procedure relating to the modification of probation, if it is satisfied
that such action is warranted by the conduct of the defendant released and the interest of justice;
(2) extend a term of supervised release if less than the maximum authorized term was previously imposed, and may modify, reduce, or
enlarge the conditions of supervised release, at any time prior to the
expiration or termination of the term of supervised release, pursuant
to the provisions of the Federal Rules of Criminal Procedure relating
to the modification of probation and the provisions applicable to the
initial setting of the terms and conditions of post-release supervision;
(3) revoke a term of supervised release, and require the defendant to
serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision, if the court, pursuant to the Federal Rules of Criminal Procedure applicable to revocation of probation or supervised release, finds by a preponderance of the evidence that the defendant
violated a condition of supervised release, except that a defendant
whose term is revoked under this paragraph may not be required to
serve on any such revocation more than 5 years in prison if the offense that resulted in the term of supervised release is a class A felony, more than 3 years in prison if such offense is a class B felony,
more than 2 years in prison if such offense is a class C or D felony, or
more than one year in any other case; or
4
(4) order the defendant to remain at his place of residence during
nonworking hours and, if the court so directs, to have compliance
monitored by telephone or electronic signaling devices, except that
an order under this paragraph may be imposed only as an alternative
to incarceration.
18 U.S.C. § 3583(e).
Section 3553(a) of Title 18, U.S. Code, provides:
FACTORS TO BE CONSIDERED IN I MPOSING A SENTENCE.—The court shall
impose a sentence sufficient, but not greater than necessary, to comply
with the purposes set forth in paragraph (2) of this subsection. The
court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in
the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any amendments made to such guidelines by act of Congress (regardless
of whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under
section 994(p) of title 28); and
5
(ii) that, except as provided in section 3742(g), are in effect on
the date the defendant is sentenced; or
(B) in the case of a violation of probation or supervised release,
the applicable guidelines or policy statements issued by the Sentencing Commission pursuant to section 994(a)(3) of title 28,
United States Code, taking into account any amendments made
to such guidelines or policy statements by act of Congress (regardless of whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under section 994(p) of title 28);
(5) any pertinent policy statement—
(A) issued by the Sentencing Commission pursuant to section
994(a)(2) of title 28, United States Code, subject to any amendments made to such policy statement by act of Congress (regardless of whether such amendments have yet to be incorporated by
the Sentencing Commission into amendments issued under section 994(p) of title 28); and
(B) that, except as provided in section 3742(g), is in effect on the
date the defendant is sentenced.
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar
conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
6
STATEMENT OF THE CASE
Edgardo Esteras, Timothy Jaimez (fka Timothy Watters), and Toriano Leaks,
Jr., each present the same question for this Court’s review, see SUP. CT. R. 12(4):
whether a district court may rely on the section 3553(a)(2)(A) factors when revoking
supervised release, even though Congress excluded section 3553(a)(2)(A) from section
3583(e)’s list of factors to consider. This question has split the federal circuit courts
of appeals, affects all federal defendants who may have their supervised release revoked, and is ripe for this Court’s review.
Esteras, Jaimez, and Leaks each were charged with and convicted of a federal
crime, over which the district court had jurisdiction under 18 U.S.C. § 3231. After
completing a custodial sentence, each began serving a term of supervised release. The
district courts later found that each of them violated conditions of supervised release,
revoked supervised release, and imposed new terms of incarceration. During each of
their revocation proceedings, the court expressly relied on one or more of the factors
set forth in section 3553(a)(2)(A). The U.S. Court of Appeals for the Sixth Circuit affirmed each of their sentences, and the court denied Esteras’ petition for rehearing
en banc over two published dissents.
1. Edgardo Esteras’ Revocation Proceedings.
After a contested hearing, the
district court found that Esteras violated his supervised-release conditions by possessing a firearm. When making its factual findings, the court referred to “the punishment I will issue today.” App. at 37a. Then, before imposing sentence, the court
indicated its “worry” that “what’s been done before” had not been “sufficient enough”
7
to “encourage [Esteras] to be respectful of the law.” App. at 39a. The court revoked
Esteras’ supervised release and varied upward from the 6-to-12-month advisory
guidelines range, sentencing him to 24 months in prison and three years of supervised
release. App at 17a, 41a.
Esteras objected that “the Court indicated that it considered factors -- the factor in Section 3553(a)(2)(A) as part of its sentence.” App. at 47a. The court confirmed
that “part of my contemplation certainly is the need for the sentence imposed, to promote respect for the law”—one of the section 3553(a)(2)(A) factors. App. at 48a.
The district court later memorialized its findings and its sentence in a written
order. Regarding the sentence, the court stated that it “considered the factors and
conditions for sentencing listed in 18 U.S.C. § 3553(a) and 3583(d), respectively.” App.
at 17a. The court specifically noted that it varied upwards and imposed a 24-month
prison term to, among other reasons, “promote respect for the law”—one of the section
3553(a)(2)(A) factors. App. at 17a-18a.
Esteras appealed. In an unpublished order, the Sixth Circuit affirmed Esteras’
sentence. Bound by the court’s prior decision in United States v. Lewis, 498 F.3d 393
(6th Cir. 2007), the panel held that “‘it does not constitute reversible error to consider
§ 3553(a)(2)(A) when imposing a sentence for violation of supervised release, even
though this factor is not enumerated in § 3583(e).’” App. at 2a (quoting Lewis, 498
F.3d at 399-400).
8
Esteras petitioned for rehearing en banc. In response, the panel issued an
amended order, and the court denied rehearing en banc. The panel majority reaffirmed the holding in Lewis that district courts may consider the section 3553(a)(2)(A)
factors when revoking supervised release. App. at 8a. Judge White joined in the result
on the basis that Lewis controlled. App. at 4a.
Two judges published dissents from the order denying rehearing en banc.
Judge Moore concluded that Lewis “relies on atextual reasoning directly contrary to
Congress’s purposes” and “is an outlier among the circuits.” App. at 22a. Judge Griffin, joined by Judge Bloomekatz, noted that punishment was “ostensibly prohibited
by the statutory text,” App. at 28a, and concluded that en banc review was warranted
“given the widespread impact of Lewis and the vigorous debate concerning its viability,” id.
Esteras again petitioned for rehearing en banc. Judge Moore again dissented,
this time joined by Judge Stranch, reiterating that “United States v. Lewis, 498 F.3d
393 (6th Cir. 2007), and the amended panel order in this case contravene the statutory text, disregard Supreme Court precedent, and place the Sixth Circuit at the extreme of a circuit split, allowing our district courts expressly to punish defendants for
violations of supervised release.” App. at 32a. Judge Griffin also again dissented,
joined by Judges Stranch and Bloomekatz. App. at 33a.
2. Timothy Jaimez’ Revocation Proceedings.
Jaimez admitted to violating
his supervised-release conditions by committing a new offense (a state misdemeanor
9
for attempted trafficking marijuana), associating with convicted felons, and possessing drug paraphernalia. App. at 54a. The district court revoked his supervised
release and sentenced him to 60 months in prison, the statutory maximum, plus six
years of supervised release. App. at 59a, 61a. The government conceded that, in sentencing Jaimez, “[t]he district court expressly considered the seriousness of the violation conduct and the need to promote respect for the law.” Gov’t Supp. Br. on Appeal
at 12.
Jaimez appealed. The Sixth Circuit affirmed. The court noted that the district
court “expressly consider[ed]” the section 3553(a)(2)(A) factors: “the seriousness of
his offense, the promotion of respect for the law, and the provision of just punishment.” App. at 55a. But the panel majority, relying on Lewis and Esteras, rejected
Jaimez’ argument that the court erred by doing so: “we’ve made clear that district
courts may nonetheless consider these factors when imposing revocation sentences.”
Id. On this point, Judge Griffin adhered to his dissent from the order denying the
petition to rehear Esteras en banc. Id. n.1.
3. Toriano Leaks’ Revocation Proceedings.
Leaks admitted to violating his
supervised-release conditions by failing to report to the probation office as directed,
failing to attend mental-health treatment, failing to work toward his GED, and committing new state offenses, for which the state court sentenced him to a total of four
to six years in prison. App. at 80a-81a. The district court revoked his supervised release and sentenced him to 12 months in prison, to be served consecutive to his state
sentences. App. at 76a, 85a. Explaining its decision to order that the sentences run
10
consecutively, the court stated: “Concurrent time does not punish Mr. Leaks for violating supervision and -- and. . . that is not justice.” App. at 85a (ellipses in transcript).
Leaks appealed, arguing that the district court erred by basing its sentence on
a section 3553(a)(2)(A) factor: the need to punish him for his violations. Relying on
Lewis and Esteras, the Sixth Circuit affirmed. App. at 75a.
11
REASONS FOR GRANTING THE PETITION
I.
The panel decisions and dissents from orders denying rehearing en banc further entrench a deep and pervasive circuit split regarding how to interpret 18
U.S.C. § 3583(e).
The panel decisions and dissents from orders denying rehearing en banc below
reflect opposing sides of a well-established circuit split over how to interpret 18
U.S.C. § 3583(e). Relying on and reaffirming the Sixth Circuit’s prior published decision in United States v. Lewis, 498 F.3d 393 (6th Cir. 2007), the panel decisions held
that a court may consider the section 3553(a)(2)(A) factors when revoking supervised
release. Four other federal courts—the First Circuit, Second Circuit, Third Circuit,
and Seventh Circuit—have also held that a court may consider those factors. See
United States v. Vargas-Dávila, 649 F.3d 129, 132 (1st Cir. 2011); United States v.
Williams, 443 F.3d 35, 47 (2d Cir. 2006); United States v. Young, 634 F.3d 233, 239
(3d Cir. 2011); United States v. Clay, 752 F.3d 1106, 1108 (7th Cir. 2014).
On the other side of the split, four federal courts—the Fourth Circuit, Fifth
Circuit, Ninth Circuit, and Tenth Circuit—have held that a court may not consider
the section 3553(a)(2)(A) factors. See United States v. Crudup, 461 F.3d 433, 439 (4th
Cir. 2006) (“According to § 3583(e), in devising a revocation sentence the district court
is not authorized to consider whether the revocation sentence ‘reflect[s] the seriousness of the offense, . . . promote[s] respect for the law, and . . . provide[s] just punishment for the offense,’ § 3553(a)(2)(A), or whether there are other ‘kinds of sentences
available,’ § 3553(a)(3).”); United States v. Miller, 634 F.3d 841, 844 (5th Cir. 2011)
(holding that a district court revoking supervised release “may not consider
12
§ 3553(a)(2)(A) because Congress deliberately omitted that factor from the permissible factors enumerated in the statute”); United States v. Miqbel, 444 F.3d 1173, 1182
(9th Cir. 2006) (“Given that § 3553(a)(2)(A) is a factor that Congress deliberately
omitted from the list applicable to revocation sentencing, relying on that factor when
imposing a revocation sentence would be improper.”); United States v. Booker, 63
F.4th 1254, 1261 (10th Cir. 2023) (“[T]he omission of § 3553(a)(2)(A) from the sentencing factors enumerated in § 3583(e) means that a district court may not consider
the need for a revocation sentence to (1) ‘reflect the seriousness of the offense,’ (2)
‘promote respect for the law,’ and (3) ‘provide just punishment for the offense’ when
modifying or revoking a term of supervised release.”). The dissents from orders denying rehearing en banc below adopted the same view. See App. at 22a; App. at 28a;
App. at 32a; App. at 33a.
Courts and commentators alike have noted the circuit split. For example, the
Congressional Research Service issued a report summarizing the state of the law
before the Tenth Circuit weighed in:
On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuit have held that federal courts may
consider retribution in making revocation decisions. On the other side,
the Fourth, Fifth, and Ninth Circuit have concluded that courts either
may not consider retribution in these decisions at all or may consider it
only to a limited degree.
Dave S. Sidhu, Cong. Research Serv., LSB10929, Can Retribution Justify the Revo-
cation of Supervised Release? Courts Disagree 1 (2023). 2 Likewise, prior to authoritative decisions from the Seventh and Tenth Circuits, the Eleventh Circuit observed
2 Available at: https://crsreports.congress.gov/product/pdf/LSB/LSB10929.
13
that “[t]he First, Second, Third, and Sixth Circuits have concluded that it is not error
to consider §3553(a)(2)(A) when revoking supervised release, while the Fourth, Fifth,
and Ninth Circuits concluded that it is error.” United States v. Vandergrift, 754 F.3d
1303, 1308 (11th Cir. 2014) (collecting cases and declining to decide the issue on
plain-error review). The amended order in Esteras acknowledged that its analysis
followed that of only “most” other circuits, App. at 11a, and the dissents from orders
denying rehearing en banc below similarly noted “a circuit split,” App. at 26a, and
“the varying circuit decisions on this issue,” App. at 29a.
The Esteras amended order further asserted that its conclusion followed the
outcomes of all other circuits, claiming that all circuits “still recognize that they [the
section 3553(a) factors] may play supporting roles in a district court’s analysis.” App.
at 11a. That is not accurate—the Tenth Circuit expressly rejected that interpretation
of section 3583(e). See Booker, 63 F.4th at 1260 & n.1. And it highlights a further
disagreement among the lower courts. Several circuits, on both sides of the underlying split, have held that “mere reference to § 3553(a)(2)(A) does not necessarily make
a revocation sentence per se unreasonable, but that reversible error may occur when
the § 3553(a)(2)(A) factor regarding retribution is the primary or predominating justification for a revocation sentence.” Id. at 1260 n.1. The Tenth Circuit rejected that
position and concluded that a court may not consider the section 3553(a)(2)(A) factors
even when they are not the primary justification. Id. At the other extreme, the Sixth
Circuit, in Lewis and in the panel decisions below, declined to adopt even the limitation that the section 3553(a)(2)(A) factors may not serve as the primary justification.
14
See App. at 8a, 55a, 75a; Lewis, 498 F.3d at 399-400; see also App. at 26a-27a (Moore,
J., dissenting from order denying rehearing en banc).
The circuits disagree both about whether courts may consider the section
3553(a)(2)(A) factors when revoking supervised release and, if so, to what extent. The
split is deep and pervasive, and the question is ripe for this Court’s review.
II.
The question presented raises an important and recurring issue fundamental
to federal supervised-release-revocation law.
The question presented is fundamental to every revocation of supervised re-
lease: what factors the court may consider when deciding the appropriate sanction.
And it affects thousands of federal cases each year. There were over 108,000 federal
supervision violations from fiscal year 2013 through fiscal year 2017, over 86% of
which resulted in a new prison term. See U.S. Sentencing Commission, Federal Pro-
bation and Supervised Release Violations 13, 34 (2020). 3 Of those who had their supervision revoked, the vast majority were serving terms of supervised release, not
probation or other supervision. See U.S. Courts, Judicial Business 2023, Table E-2
(of 122,824 persons under post-conviction supervision as of September 30, 203, over
110,000 were serving terms of supervised release). 4 As noted by Judge Griffin in his
dissents from the orders denying rehearing en banc, the circuit’s varying holdings
3 Available at: https://www.ussc.gov/sites/default/files/pdf/research-and-publications/researchpublications/2020/20200728_Violations.pdf.
4 Available at: https://www.uscourts.gov/statistics/table/e-2/judicial-business/ 2023/09/30.
15
have “enormous consequences” and “widespread impact,” warranting this Court’s intervention. App. at 28a, 33a.
III.
The decisions below are wrong.
The statutory text, this Court’s precedent, legislative history, and background
constitutional principles establish that courts may not consider the section
3553(a)(2)(A) factors when revoking supervised release.
Start with the text. The supervised-release statute, 18 U.S.C. § 3583, states
that, when a person violates a condition of supervised release, the court may revoke
supervised release and impose a prison term “after considering the factors set forth
in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” 18
U.S.C. § 3583(e)(3). Section 3553(a)(2)(A) is not one of the factors listed for a court to
consider. As this Court has instructed, “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.” Russello v. United States, 464 U.S. 16, 23 (1983). Thus, “given
that § 3553(a)(2)(A) is a factor that Congress deliberately omitted from the list applicable to revocation sentencing, relying on that factor when imposing a revocation
sentence would be improper.” Miqbel, 444 F.3d at 1182.
Further, this Court has applied the same rule in another subsection of the
same statute. Section 3583(e)’s list of factors for consideration is the same as the list
in 18 U.S.C. § 3583(c)—the two subsections use identical text. Reviewing the latter
subsection, this Court stated: “a court may not take account of retribution (the first
16
purpose listed in § 3553(a)(2)) when imposing a term of supervised release. See
§ 3583(c).” Tapia v. United States, 564 U.S. 319, 326 (2011) (emphasis in original).
The Court reaffirmed that conclusion in Concepcion v. United States, 597 U.S. ---,
142 S. Ct. 2389, 2400 (2022) (“[I]n determining whether to include a term of supervised release, and the length of any such term, Congress has expressly precluded
district courts from considering the need for retribution. See § 3583(c)[.]”).
The legislative history confirms this interpretation. Congress enacted sections
3553 and 3583 as part of the Comprehensive Crime Control Act of 1984. See Comprehensive Crime Control Act of 1984, Pub. L. 98-473, 98 Stat. 1837. Congress excluded the factors listed in section 3553(a)(2)(A) from the factors for courts to consider
both when deciding to impose a term of supervised release, see 18 U.S.C. § 3583(c),
and when deciding to revoke supervised release and impose a prison sentence, see 18
U.S.C. § 3583(e). That decision was intentional. Addressing section 3583(c), the Senate Judiciary Committee stated:
The Committee has concluded that the sentencing purposes of incapacitation and punishment would not be served by a term of supervised release-- that the primary goal of such a term is to ease the defendant’s
transition into the community after the service of a long prison term for
a particularly serious offense, or to provide rehabilitation to a defendant
who has spent a fairly short period in prison for punishment or other
purposes but still needs supervision and training programs after release.
S. Rep. No. 98-225, at 124 (1983). The Committee further noted that section 3583(e)
permitted district courts to modify or revoke supervised release “after considering
the same factors considered in the original imposition of a term of supervised release.” Id. at 125.
17
Finally, the constitutional context. By prohibiting courts from considering the
section 3553(a)(2)(A) factors when revoking supervised release, Congress drew a
careful line that avoided the “serious constitutional questions” that would arise if it
did not. Johnson v. United States, 529 U.S. 694, 700 (2000). By excluding section
3553(a)(2)(A) from the list in section 3583(e), Congress instructed courts not to consider the need for the sentence “to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense.” 18 U.S.C.
§ 3553(a)(2)(A). Failing to exclude those factors, and thereby allowing courts to consider the need to punish the offender, could run afoul of several constitutional requirements. See Johnson, 529 U.S. at 700 (holding that “construing revocation and
reimprisonment as punishment for the violation of the conditions of supervised release” would raise “serious constitutional questions”).
For example, “[w]here the acts of violation are criminal in their own right, they
may be the basis for separate prosecution, which would raise an issue of double jeopardy if the revocation of supervised release were also punishment for the same offense.” Id. Similarly, because petitioners’ supervised-release violations carried a
maximum sentence of more than six months in prison, imposing punishment for
those violations could run afoul of the right to a jury trial under the Sixth Amendment. See Baldwin v. New York , 399 U.S. 66, 69 (1970) (plurality op.); Duncan v.
Louisiana, 391 U.S. 145, 162 (1968); see also United States v. Haymond, 588 U.S. ---,
139 S. Ct. 2369, 2381 (2019) (plurality op.) (“If the government were right, a jury’s
conviction on one crime would . . . permit perpetual supervised release and allow the
18
government to evade the need for another jury trial on any other offense the defendant might commit, no matter how grave the punishment.”).
The Esteras amended order concluded that “this proposed bright-line rule”—
Congress’s bright-line rule, per the statute’s text—was “unworkable” because the
“purported forbidden considerations mentioned in § 3553(a)(2)(A) tend to be ‘essentially redundant’ with the permitted ones.” App. at 8a. But that observation cuts
against the panel majority’s conclusion. If other factors address much of what section
(a)(2)(A) covers, there is little reason to rely on the section (a)(2)(A) factors. And what
(a)(2)(A) covers that is not covered by the other factors is crucial: factors related to
punishment. See 18 U.S.C. § 3553(a)(2)(A) (“the need for the sentence imposed . . . to
reflect the seriousness of the offense, to promote respect for the law, and to provide
just punishment for the offense); Miqbel, 444 F.3d at 1182 (noting that the need to
promote respect for the law and reflect the seriousness of the offense “is often intertwined with the concept of punishment, as it is in § 3553(a)(2)(A) itself”). Relying on
factors related to punishment in a decision to imprison a person for a supervisedrelease violation would run afoul of the statute’s intent, see S. Rep. No. 98-225, at
124 (1983), and potentially violate constitutional guarantees, see Johnson, 529 U.S.
at 700; Duncan, 391 U.S. at 161-62. Courts can avoid those problems by relying solely
on the factors that Congress instructed them to rely on, just as Congress intended.
Nor is following the statute as written unworkably difficult to implement. District courts must not rely on the excluded factors. It is unworkable only if a court
19
considers punishment to be the purpose for addressing a supervised-release violation. See App. at 25a-26a (Moore, J., dissenting from order denying rehearing en
banc). Punishment is an inherently backward-looking analysis, examining what a
person did and determining what sanction is appropriate in retribution. Supervised
release is a forward-looking endeavor, tasking courts with managing a person’s transition back into society after serving their punishment. See Haymond, 139 S. Ct. at
2382 (plurality op.) (“[S]upervised release wasn’t introduced to replace a portion of
the defendant’s prison term, only to encourage rehabilitation after the completion of
his prison term.”); S. Rep. No. 98-225, at 124 (1983) (noting that the “primary goal”
of supervised release “is to ease the defendant’s transition into the community” and
“to provide rehabilitation to a defendant who has spent a fairly short period in prison
for punishment or other purposes but still needs supervision and training programs
after release”). A court may revoke a person’s supervised release only based on forward-looking goals—for example, to provide needed correctional treatment, 18
U.S.C. § 3553(a)(2)(D), to deter them or others from violating supervised release, 18
U.S.C. § 3553(a)(2)(B), or to protect the public from further offenses, 18 U.S.C.
§ 3553(a)(2)(C)—while the person is transitioning back into society. See 18 U.S.C.
§ 3553(e). Viewing revoking supervised release as a forward-looking endeavor, as
Congress intended, does not present courts with an unworkable task.
IV.
These cases are ideal vehicles for resolving the question presented.
These cases squarely present whether a court may rely on the section
3553(a)(2)(A) factors when revoking supervised release. In each case, the district
20
court expressly relied on one or more of the section 3553(a)(2)(A) factors, and the
court of appeals reviewed the resulting sentence on the merits and addressed the
question presented. See App. at 8a-13a, 55a, 75a. The factual and legal issues involved are well developed in the panel orders and dissents from the orders denying
rehearing en banc. These cases are thus ideal vehicles for the Court to review and
decide the question presented.
CONCLUSION
The Court should grant the petition.
Respectfully submitted,
JOSEPH MEDICI
STEPHEN C. NEWMAN
Federal Public Defender,
Southern District of Ohio
Federal Public Defender,
Northern District of Ohio
/s/ Christian J. Grostic
Christian J. Grostic
Kevin M. Schad
250 E. 5th Street, Suite 350
Cincinnati, OH 45202
(513) 929-4834
kevin_schad@fd.org
Counsel of Record
1660 W. 2nd Street, Suite 750
Cleveland, Ohio 44113
(216) 522-4856
christian_grostic@fd.org
Counsel for Petitioners
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.