Petition for Writ of Certiorari — Edgardo Esteras, Petitioner v. United States

Supreme Court briefMay 15, 2024

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APPENDIX

TABLE OF CONTENTS

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

Appendix A

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Appendix A

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Appendix B

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0272p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

EDGARDO ESTERAS,

Defendant-Appellant.

│

┘

No. 23-3422

Appeal from the United States District Court for the Northern District of Ohio at Youngstown.

No. 4:14-cr-00425-10—Benita Y. Pearson, District Judge.

Decided and Filed: December 20, 2023*

Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER,

Cleveland, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE,

Cleveland, Ohio, for Appellee.

SUTTON, C.J., delivered the order of the court in which THAPAR, J., joins in full.

WHITE, J., joins in the result because she agrees that United States v. Lewis, 498 F.3d 393 (6th

Cir. 2007) is controlling.

*This decision originally issued as a judge order on August 16, 2023. The court has now designated the

amended order for publication.

Appendix B

No. 23-3422

United States v. Esteras

Page 2

____________________

AMENDED ORDER

____________________

SUTTON, Chief Judge. Edgardo Esteras appeals the district court’s order revoking his

supervised release and sentencing him to 24 months in prison. We affirm the district court’s

revocation order for the reasons that follow.

In 2018, Esteras pleaded guilty to conspiring to distribute and possess with intent to

distribute heroin in violation of 21 U.S.C. §§ 841(a)(1) and 846. Varying downward from a

guidelines range of 15 to 21 months, the district court sentenced Esteras to 12 months of

imprisonment, to be served consecutively with a 15-month prison term for violating his

probation for a prior federal drug-trafficking conviction, followed by six years of supervised

release.

Esteras’s six-year term of supervised release began in January 2020. Three years later, in

January 2023, the probation officer reported to the district court that Esteras had violated the

conditions of his supervised release (1) by committing domestic violence, aggravated menacing,

and criminal damaging, and (2) by possessing a firearm. The probation officer notified the

district court that the new criminal charges against Esteras had been dismissed at the victim’s

request.

Judge Benita Y. Pearson conducted a hearing and found that Esteras possessed a firearm

while under supervised release. She “worr[ied]” that her previous sentences for drug crimes and

violating an earlier supervised release term failed “to deter [Esteras], to encourage [him] to be

respectful of the law.” R.439 at 83. Based on his “dangerous” and “disrespectful” behavior, she

varied upward from an advisory range of six to twelve months to impose a 24-month jail

sentence, “long enough to at least allow [Esteras] to reconsider [his] behavior.” Id. at 85. She

added three years of supervised release to the sentence, including an anger management class

and six months of location monitoring. These conditions, Judge Pearson explained, would teach

him to “do better” and “think before [he] act[s].” Id.

Appendix B

No. 23-3422

United States v. Esteras

Page 3

Esteras objected that the court should not have considered the three subfactors identified

in 18 U.S.C. § 3553(a)(2)(A) when crafting its sentence: “to reflect the seriousness of the

offense, to promote respect for the law, and provide just punishment for the offense.” Id. at 92.

Judge Pearson agreed that “part of [her] contemplation certainly is the need for the sentence

imposed, to promote respect for the law.” Id. But she added that she also considered deterrence

and community safety, which appear in other statutory provisions. She also referenced her

decision to vary upward “to separate Mr. Esteras from the average, typical, mine run-type

defendant.” Id.

In closing the hearing, Judge Pearson expressed hope that Esteras would take advantage

of this opportunity. She acknowledged that some of the conventional features of supervised

release could be seen as partly “punitive,” such as location monitoring and other measures that

“restrict [his] freedom” of movement. Id. She then referred to other terms, such as anger

management, as “there to bolster [him]” and “help [him] to do better going forward.” Id. at 95–

96.

On appeal, Esteras challenges his sentence on the ground that the district court relied on

prohibited factors in sentencing him. We disagree.

Congress has authorized district courts to revoke supervised release. See 18 U.S.C.

§ 3583(e). In some settings, district courts have discretion to revoke, modify, or decrease a term

of supervised release. Id. In other settings, as when a parolee possesses a weapon as Esteras did

here, the district court must revoke the individual’s supervised release. Id. § 3583(g). Whether

at the outset of sentencing an individual, in the context of a modified term of supervised release,

or in the context of a required revocation of supervised release, Congress has directed courts to

consider certain factors. In the words of Congress under the heading “Factors to be considered

in including a term of supervised release”: “The court . . . consider[s] 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).”

Id.

§ 3583(c); see also id. § 3583(e) (similar for “modification of conditions or revocation” of

supervised release).

Appendix B

No. 23-3422

United States v. Esteras

Page 4

To bring this provision into full view, here is a full recitation of § 3553(a) that italicizes

the factors that district courts need not consider in supervised-release determinations:

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;

(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

such

guidelines

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

(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

Appendix B

No. 23-3422

United States v. Esteras

Page 5

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.

Invoking the italicized language, Esteras claims that § 3583(c) and (e) create a divide

between permitted and forbidden supervised-release considerations. As he sees it, a district court

judge who considers the forbidden factors—“the seriousness of the offense,” “respect for the

law,” “just punishment for the offense,” or “the kinds of sentences available”—necessarily

imposes a procedurally unreasonable sentence.

Notably, this argument applies to original

supervised-release decisions, which come immediately on the heels of any prison-sentence

determination under all of the § 3553(a) factors, see 18 U.S.C. § 3583(c), as well as to any

revocation, modification, or reduction determinations with respect to supervised release, see id.

§ 3583(e), (g).

United States v. Lewis rejected this argument. 498 F.3d 393, 399–400 (6th Cir. 2007). It

provided two explanations: one textual, one contextual. Textually, Lewis observes that § 3583

generally gives courts considerable discretion over supervised-release decisions after considering

the listed factors. Id. at 400. It never says that the court may consider “only” those factors. Id.

Congress, as it happens, knew how to instruct courts not to consider certain sentencing factors, as

shown in its express command to disregard the goal of rehabilitation when imposing prison time.

18 U.S.C. § 3582(a) (“recognizing that imprisonment is not an appropriate means of promoting

correction or rehabilitation”).

In the context of supervised-release decisions, moreover, Lewis was concerned that this

proposed bright-line rule was unworkable.

supervised-release

decision,

the

Whether in the context of an initial or later

purportedly

forbidden

considerations

mentioned

§ 3553(a)(2)(A) tend to be “essentially redundant” with the permitted ones. Lewis, 498 F.3d at

400. Take § 3553(a)(2)(A)’s consideration about the “seriousness of the offense.” It aligns with

Appendix B

No. 23-3422

United States v. Esteras

Page 6

§ 3553(a)(1) and its emphasis on “the nature and circumstances of the offense.” To think about

the one requires the judge to think about the other.

Or take § 3553(a)(2)(A)’s consideration of the need “to promote respect for the law.” It

meshes with the rationale that revoking supervised release will “help” the defendant “learn to

obey the conditions of his supervised release.” Id. (quoting Johnson v. United States, 529 U.S.

694, 709 (2000)). Indeed, in this case, Judge Pearson quite understandably could not see how

she could ignore respect for the law but consider a defendant’s need to respect the terms of

supervised release. To neglect the one dishonors the other.

Or take § 3553(a)(2)(A)’s reference to “just punishment for the offense.”

Under

§ 3553(a)(5), courts must consider “any pertinent policy statement” of the Sentencing

Commission. Among other guidance, the Commission tells judges to “sanction the violator for

failing to abide by the conditions of the court-ordered supervision.” Id. (quoting U.S.S.G. ch. 7

pt. A § 3(b)). The district court, in other words, must craft a remedy that corresponds to how

severely the defendant has breached the court’s trust as “embodied by the original sentence,”

which it cannot do without accounting for the conduct that violated supervised release. United

States v. Johnson, 640 F.3d 195, 204 (6th Cir. 2011). Another enumerated factor tells a court

how to carry out that analysis. Under § 3553(a)(4)(B)’s command to consult the Sentencing

Commission’s supervised-release guidelines, a court first classifies how “serious” these

violations are and then uses the categorization to determine the length of any prison sentence.

U.S.S.G. §§ 7B1.1, 7B1.3, 7B1.4.

Esteras’s bright-line rule is unworkable in another way. Recall that Congress requires

courts to consider the same set of factors when first imposing a term of supervised release as

when revoking one. 18 U.S.C. § 3583(c), (e). Under Esteras’s rule, if Congress forbade district

courts from considering anything related to § 3553(a)(2)(A) at a revocation hearing, it would not

permit use of anything related to those factors at an initial sentencing either. How would this

work? Would the sentencing judge have to adjourn the hearing after imposing a sentence?

Then, would she have to start over with a new unblemished inquiry into the right term of

supervised release without any consideration, explicitly or implicitly, of considerations related

to, say, the “rule of law”? Congress could not have expected courts to wipe their minds of these

Appendix B

No. 23-3422

United States v. Esteras

Page 7

concerns when they move from one type of sentence to the other, and nothing in the statute

requires such compartmentalization.

If anything, the language points the other way.

specifically allows courts to account for the length of a supervised-release term “in imposing a

sentence to a term of imprisonment.” Id. § 3583(a).

Esteras’s invocation of Tapia v. United States does not change matters. 564 U.S. 319

(2011). It did not, most critically, arise under this statute. The case dealt with a different

sentencing law, one with explicit directions, not uncertain implications. The statute in no

uncertain

terms

says

“that

imprisonment

not

appropriate

means

promoting . . . rehabilitation.” 18 U.S.C. § 3582(a). Consistent with that directive, Tapia ruled

that the statute precludes courts from considering “rehabilitation” when imposing prison time.

“Our consideration of Tapia’s claim,” it reasoned, “starts with the text of 18 U.S.C. § 3582(a)—

and given the clarity of that provision’s language, could end there as well.” Tapia, 564 U.S. at

326.

In the course of its analysis, it is true, the Court said in dicta that “a court may not take

account of retribution” when it “impos[es] a term of supervised release.” Id. But even taken at

face value, this reference does not undermine the district court’s sentence.

The provision

confirms two things. First, when the court imposes an initial supervised-release term, retribution

should not guide the decision. No one has shown that Judge Pearson did anything of the sort at

that point—and Esteras has not argued otherwise. Second, if the defendant violates a term of

supervised release or commits a new crime, the government is put to a choice. If it wishes to

exact retribution for the new offense, new charges and the resulting process that comes with it

are in order. Otherwise, the district court should focus on non-retributive factors in deciding the

new sentence and the new term of supervised release. But the district court in this instance did

not claim a right to exact retribution for this violation or for that matter use the word. As shown,

references to other concepts mentioned in § 3553(a)(2) are hopelessly over-inclusive, and mere

references to things like the “rule of law”—or, worse, concepts that overlap with it—do not

create a procedurally unreasonable sentence absent evidence that the court was engaged in

imposing a purely retributive sentence. No such evidence exists here. In fact, Tapia confirms

the point. It ruled for the defendant only after observing that the court’s “number one thing

10a

Appendix B

No. 23-3422

United States v. Esteras

Page 8

[was] the need to provide treatment” and so may have increased the sentence to ensure Tapia

was “in long enough to get the 500 Hour Drug Program.” Id. at 334 (quotations omitted).

This understanding of § 3583(e) accords with the analysis of most other circuits and the

outcomes of all of them. The general rule is that courts may invoke factors related to the three

general considerations in § 3553(a)(2)(A) without creating a procedurally unreasonable sentence.

United States v. Vargas-Davila, 649 F.3d 129, 132 (1st Cir. 2011) (“Although section 3583(e)(3)

incorporates by reference, and thus encourages, consideration of certain enumerated subsections

of section 3553(a), it does not forbid consideration of other pertinent section 3553(a) factors.”);

United States v. Williams, 443 F.3d 35, 48 (2d Cir. 2006) (“[Section] 3583(e) cannot reasonably

be interpreted to exclude consideration of the seriousness of the releasee’s violation, given the

other factors that must be considered.”); United States v. Young, 634 F.3d 233, 240 (3d Cir.

2011) (“[T]he mere omission of § 3553(a)(2)(A) from the mandatory supervised release

revocation considerations in § 3583(e) does not preclude a court from taking [the

§ 3553(a)(2)(A) factors] into account. To hold otherwise would ignore the reality that the

violator’s conduct simply cannot be disregarded in determining the appropriate sanction.”);

United States v. Webb, 738 F.3d 638, 642 (4th Cir. 2013) (“[A]lthough a district court may not

impose a revocation sentence based predominantly on [the § 3553(a)(2)(A) factors], we conclude

that mere reference to such considerations does not render a revocation sentence procedurally

unreasonable when those factors are relevant to, and considered in conjunction with, the

enumerated § 3553(a) factors.”); United States v. Clay, 752 F.3d 1106, 1108–09 (7th Cir. 2014)

(“[T]his subsection may be considered so long as the district court relies primarily on the factors

listed

§ 3583(e) . . . . [T]here

significant

overlap

between

these

factors

and

§ 3553(a)(2)(A).”); see also United States v. King, 57 F.4th 1334, 1338 n.1 (11th Cir. 2023)

(acknowledging language in prior cases permitting references to factors that also appear in

§ 3553(a)(2)(A)).

Esteras’s argument, notably, does not even work on its own terms—at least the terms of

those circuits that support some of his reasoning.

The circuits that have described the

§ 3553(a)(2)(A) factors as impermissible when used punitively still recognize that they may play

supporting roles in a district court’s analysis. United States v. Sanchez, 900 F.3d 678, 684 n.5

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United States v. Esteras

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(5th Cir. 2018) (“[T]his is not to say that any use of words like ‘punish,’ ‘serious,’ or ‘respect’

automatically renders a revocation sentence void. Mere mention of impermissible factors is

acceptable; to constitute reversible error, our circuit has said, the forbidden factor must be

‘dominant.’”); United States v. Porter, 974 F.3d 905, 907 (8th Cir. 2020) (“Although we have

labeled § 3553(a)(2)(A) an improper, irrelevant, or ‘excluded’ factor, we have not declared its

consideration an error of law and therefore an abuse of discretion.”); United States v. Simtob,

485 F.3d 1058, 1063 (9th Cir. 2007) (“[A] district court may properly look to and consider the

conduct underlying the revocation as one of many acts contributing to the severity of the

violator’s breach of trust so as not to preclude a full review of the violator’s history and the

violator’s likelihood of repeating that history.”); United States v. Booker, 63 F.4th 1254, 1261–

62 (10th Cir. 2023) (rejecting the criminal defendant’s appeal in a plain-error setting and noting

that it would be problematic to rely on a “direct quotation to [two] factors that may not be

considered” and as a result issue a “retributive” sentence). Even under these decisions, Judge

Pearson acted properly when she considered the need to promote respect for “the rule of law”

alongside the enumerated § 3553(a) factors. This “highly relevant” concern clearly speaks to the

need to deter Esteras’s misconduct and protect the public from his disregard of the rule of law, to

say nothing of fulfilling the Sentencing Guideline’s commentary on sanctioning Esteras for

breaching the court’s trust. Porter, 974 F.3d at 908–09. All in all, it is highly doubtful that the

outcome in this case would change under any other circuit’s decision.

Last of all, Esteras is concerned that Judge Pearson used the word “punishment” during

the hearing. But this reference occurred at the beginning of the sentencing phase of the hearing

and simply set the stage. In her words, “I find that the new law violation” occurred and that she

may “consider” “evidence” of it “in the punishment I will issue today.” R.439 at 81. This

manner of speaking at the beginning of a sentencing hearing does not remotely convey an intent

to impose a retributive sentence in the context of a gun-possession violation that required

“punishment”—the revocation of supervised release. See 18 U.S.C. § 3583(g). Likewise, when

the judge later used the word “punitive” in describing the conditions of supervised release, R.439

at 95, it was to ensure that the sentence was not too long—that the “deprivation of [Esteras’s]

liberty” was “no greater . . . than is reasonably necessary for the purposes set forth” in the

enumerated § 3553(a)(2) sections, 18 U.S.C. § 3583(d)(2).

Surely, shorthand references to

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“punitive” or “punishment” in the context of ensuring a sentence is not too long do not convey a

forbidden focus on retribution.

We AFFIRM the district court’s revocation order.

13a

Appendix C

PEARSON, J.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

EDGARDO ESTERAS,

Defendant.

)

CASE NO. 4:14-CR-425-10

JUDGE BENITA Y. PEARSON

ORDER

On September 6, 2018, Defendant Edgardo Esteras was sentenced to a 12-month term of

incarceration as to Count 1 of the Indictment for conspiracy to distribute heroin, such term to be

served consecutively to the 15-month term of incarceration imposed for the probation violation in

Case No. 4:11-CR-276-12-DAP, followed by a six-year term of supervised release, with standard

and special conditions of supervision imposed. Defendant was further ordered to pay a $100.00

special assessment.

Following Defendant’s term of incarceration, supervised release commenced on January

10, 2020.

On or about February 20, 2020, the United States Probation Office (“USPO”) submitted a

Supervision Report to request a suspension of the GED condition:

This report serves to request a suspension of the General Education Diploma (GED)

condition. Before incarceration, Mr. Esteras was diagnosed with an intellectual

development disorder indicating difficulty with reading, writing, and comprehension.

The undersigned officer has had multiple conversations with Mr. Esteras regarding the

condition. Mr. Esteras has expressed a willingness to work toward obtaining his GED,

but disclosed that he has tried and does not think he is capable of comprehending the

material.

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(4:14-CR-425-10)

On July 20, 2020, the Court ordered suspension of the GED requirement under the

circumstances described.

On or about September 19, 2022, the USPO issued a Supervision Report to relay a

request from Defendant for early termination of his term of supervised release.

On September 21, 2022, the Court denied Defendant’s request for early termination of

supervised release, without prejudice to another request being considered at a later time.

On or about January 23, 2023, the USPO issued a Violation Report to notify the Court of

Defendant’s violation of the terms and conditions of his supervised release:

-New Criminal Charges (filing is pending with Youngstown Municipal Court)

-Violent Conduct

-Whereabouts Unknown (Absconder)

On January 23, 2023, at 0003 hours, Officers with the Youngstown Police Department

were dispatched to 1137 Inverness Avenue in Youngstown in reference to gunfire. Upon

arrival, contact was made with the victim, who advised the father of her children,

Edgardo Esteras, had physically assaulted her and threatened to kill her. At

approximately 2350 hours, Mr. Esteras stormed into the residence, struck the victim in

the head, punched a television set, and then stormed outside of the residence. The victim

followed Mr. Edgardo out of the residence who was now inside a vehicle. The victim

reached inside the vehicle to grab Mr. Esteras car keys, at which time he produced a

handgun and pointed it at the victim and stated, “I’m going to kill you”. At this time, the

victim retreated inside the residence at which time Mr. Esteras fired three rounds into her

vehicle, an Infiniti JX35, which was located in the driveway of the residence. Mr. Esteras

then fled the scene in a Black Chevy Blazer with an unknown registration.

Officers recovered spent 9mm shell casings and observed three bullet holes in the side of

MI’s vehicle, as well as a broken television set. The victim refused medical treatment but

did advise she wished to file charges of domestic violence against Mr. Esteras. The

victim further advised that Mr. Esteras frequently assaults her, and she has had enough.

The Youngstown Police Department is currently pursuing charges of Domestic Violence,

Illegal Discharge of a Firearm, and Vehicular Vandalism. Formal charges have not been

officially filed and Mr. Esteras remains at large as of the time of this report.

On January 23, 2023, the Court ordered the issuance of a Warrant for Defendant’s arrest.

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(4:14-CR-425-10)

On or about January 30, 2023, the USPO issued a Follow Up Violation Report to provide

an update to the Court on Defendant’s violations:

New Law Violation: On January 23, 2023, Mr. Esteras was charged with

Domestic Violence (M1), Aggravated Menacing (M1), and Criminal

Damaging/Endangering (M2) in the Youngstown Municipal Court under case

number 2023CRB00121.

Possession of a Firearm: On January 23, 2023, Mr. Esteras did have in his

possession or under his control a firearm.

Defendant was arrested and appeared before Magistrate Judge Amanda M. Knapp on

January 31, 2023 for an initial appearance. On February 6, 2023, Magistrate Judge Knapp

conducted preliminary and detention hearings. The Court found that probable cause existed for

the violations, and additional proceedings would be conducted by the undersigned. Defendant

was remanded to the custody of the U.S. Marshals Service.

On or about March 14, 2023, the USPO issued a Supplemental Information Report to

provide an update to the Court regarding the status of Defendant’s state charges:

On January 22, 2023, Mr. Esteras was charged with Domestic Violence (M1), Aggravated

Menacing (M1), and Criminal Damaging (M2) in the Youngstown Municipal Court under

case number 2023CRB00121Y. On February 22, 2023, all charges were dismissed at

request of the victim.

On April 18, 2023, the Court conducted a Supervised Release Violation Hearing and

Sentencing, at which time Defendant denied Violation Numbers 1 and 2. Officer Robert

DiMaiolo testified on direct examination by the Government, with cross examination by the

defense. The Government played a bodycam video (Exhibit 5) of the victim and her family’s

early morning interactions with law enforcement officers shortly after the above referenced

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(4:14-CR-425-10)

crimes occurred.1 During those recorded interactions, no one indicated a perpetrator other than

Defendant. The alleged victim testified that, after that early morning interaction with law

enforcement, she went to municipal court and reported Defendant as the perpetrator of the

crimes. Despite the strong evidence against Defendant, the victim attempted (unpersuasively) to

recant, when examined on direct examination by defense counsel. The Government effectively

cross examined the victim and submitted Government’s Exhibits 1 through 5, which were

admitted without objection. The Court found by a preponderance of the evidence that Defendant

possessed a firearm, in violation of the terms of his supervised release, sustaining Violation No.

2. The Court proceeded to pronounce sentence after allocution.

Sentencing

Among other things, the Court has considered the evidence presented at the violation

hearing, statutory maximum penalties pursuant to 18 U.S.C. § 3583(e)(3); the advisory policy

statements set forth in Chapter Seven of the United States Sentencing Guidelines; and the

suggested range of incarceration pursuant to U.S.S.G. § 7B1.4(a). Furthermore, the Court has

considered the factors and conditions for sentencing listed in 18 U.S.C. § 3553(a) and 3583(d),

respectively.

Based upon the Court’s review and for the reasons set forth on the record, Defendant’s

term of supervised release is revoked. The Court varied upwards and imposed a term of

incarceration of 24 months, for among other reasons, to protect society and promote respect for

The video revealed a household of individuals of myriad ages joining the victim

in recounting Defendant’s visit to the home during which he discharged a firearm into the

victim’s car, forcibly broke the household’s television and punched the victim in the

neck.

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(4:14-CR-425-10)

the law. The Court recommends that Defendant be designated to a facility close to his home,

such as FCI Elkton, Lisbon, OH, and be permitted to participate in any drug treatment and anger

management/behavioral programs. Upon release, Defendant shall serve a three-year term of

supervised release, with all uncompleted conditions of supervised release remaining imposed.

The first six months of his supervised release shall be on location monitoring with a curfew.

Defendant is prohibited from contacting the victim or her children without permission from his

supervising officer. The special condition of mental health treatment is reimposed to include an

anger management component.

IT IS SO ORDERED.

May 9, 2023

Date

/s/ Benita Y. Pearson

Benita Y. Pearson

United States District Judge

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Appendix D

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0273p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

EDGARDO ESTERAS,

Defendant-Appellant.

│

┘

No. 23-3422

On Petition for Rehearing En Banc

United States District Court for the Northern District of Ohio at Youngstown.

No. 4:14-cr-00425-10—Benita Y. Pearson, District Judge.

Decided and Filed: December 20, 2023

Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Christian J. Grostic, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. ON RESPONSE: Matthew

B. Kall, Jason Manion, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for

Appellee.

The court issued an order denying the petition for rehearing en banc. MOORE, J. (pp. 3–

9), delivered a separate opinion dissenting from the denial of the petition for rehearing en banc.

GRIFFIN, J. (pp. 10–11), also delivered a separate opinion, in which BLOOMEKATZ, J.,

joined, dissenting from the denial of the petition for rehearing en banc.

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Page 2

____________________

ORDER

____________________

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision. The petition then was circulated to the full court.

Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.

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____________________

DISSENT

____________________

KAREN NELSON MOORE, Circuit Judge, dissenting from denial of rehearing en banc.1

The top line of any sentence is generally the term of incarceration. What catches the eye is how

long the defendant will be in prison, not how long the defendant will remain under court

supervision. But in the federal system, supervised release—the often years’ long period of court

supervision and restrictions following incarceration—comes with the specter of more time in a

cell. Judges may “revoke” a defendant’s supervised release if a defendant violates court-ordered

conditions, sending the defendant back to prison for months or possibly years. After Edgardo

Esteras spent twelve months in federal prison on his original term of incarceration, the judge in

his case sentenced him to 24 more months in prison—double his original sentence—for violating

conditions of supervised release. R. 439 (Revocation Tr. at 85:13–21) (Page ID #2887).

Revocation of supervised release is immensely impactful, and sometimes carries

consequences even greater than an original term of incarceration. In sentencing Esteras after

revoking his supervised release, the district court focused on the retributive purpose of the

additional term of incarceration. See, e.g., id. at 81:17–22 (Page ID #2883) (explaining what

information can be considered “in the punishment I will issue today” (emphasis added)); id. at

83:9–11 (Page ID #2885) (“[W]hat’s been done before isn’t sufficient enough to deter you, to

encourage you to be respectful of the law, to be law-abiding.” (emphasis added)). But the

supervised-release statute tells district courts not to consider punishment as a purpose when

imposing or revoking supervised release. When defense counsel objected to the district court’s

1The court received a petition for rehearing en banc concerning the original order in this case, which

followed binding Sixth Circuit precedent. The petition for rehearing en banc was circulated to the entire court, and

less than a majority of the judges voted in favor of rehearing the original order en banc. Following circulation to the

full court of the en banc petition, however, the panel revised its prior order and circulated it to the en banc court. En

banc rehearing of the prior order was warranted, which is why I dissent from denial of rehearing en banc. And en

banc rehearing remains warranted now that the panel is issuing an amended order, because that revised decision

likewise relies on the same mistaken precedent. Because both the original and revised orders rely on United States

v. Lewis, 498 F.3d 393 (6th Cir. 2007), I have addressed both in this dissent from denial of rehearing en banc.

Esteras is of course free to petition for en banc rehearing again, now that the panel has filed a revised and published

decision.

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impermissible consideration of certain statutory factors embodying retributive purposes, the

district court confirmed that it relied heavily on “promot[ing] respect for the law” in reaching its

sentence, which represented an upward variance. Id. at 92:16–18 (Page ID #2894). In effect,

there is a real chance that Esteras was essentially punished twice, raising concerns of a

constitutional dimension and flagrantly violating Congress’s intent in any event. Our precedent

that allows district courts to consider unenumerated sentencing factors when revoking supervised

release, United States v. Lewis, 498 F.3d 393 (6th Cir. 2007), relies on atextual reasoning directly

contrary to Congress’s purposes. It is an outlier among the circuits. Our failure today to correct

Lewis’s basic mistakes usurps Congress’s role, runs afoul of rudimentary principles of statutory

interpretation, and ultimately undermines the purposes of supervised release. Today’s decision

in this case serves only to prolong our unfortunate adherence to a mistaken precedent.

Today’s opinion defends Lewis on two grounds: “one textual, [and] one contextual.”

Amended Order at 5. Neither ground supports Lewis or today’s decision. The statutory text is

clear. It directs district judges to take account of certain sentencing factors, but not others, when

revoking supervised release. Under 18 U.S.C. § 3583(e), a 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),” terminate, modify, extend, or revoke a defendant’s term of supervised release. Notably

absent from this list is § 3553(a)(2)(A), which directs district courts to consider “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.” Canons of statutory construction dictate that this

omission was intentional and command district courts not to take account of the (a)(2)(A) factors

when revoking supervised release. See, e.g., Leatherman v. Tarrant Cnty. Narcotics Intel. &

Coordination Unit, 507 U.S. 163, 168 (1993) (declining to extend Rule 9(b)’s pleading

requirements to complaints alleging municipal liability because “the Federal Rules do address in

Rule 9(b) the question of the need for greater particularity in pleading certain actions, but do not

include among the enumerated actions any reference to complaints alleging municipal liability”);

id. (“Expressio unius est exclusio alterius.”); Russello v. United States, 464 U.S. 16, 23 (1983)

(“[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

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purposely in the disparate inclusion or exclusion.” (quoting United States v. Wong Kim Bo,

472 F.2d 720, 722 (5th Cir. 1972))).

Simply put, Lewis and today’s opinion offer no explanation for why Congress

deliberately chose to include some, but not all, of the § 3553(a) factors in § 3583(e). Today’s

opinion declares that § 3583 “generally gives courts considerable discretion over supervisedrelease decisions after considering the listed factors.”

Amended Order at 5 (citing Lewis,

498 F.3d at 400). But neither Lewis nor the instant opinion can ground this contention in the

statutory text. Rather, § 3583(e) explicitly constrains the exercise of discretion, directing district

courts to focus on only the enumerated factors. Had Congress wished for district courts to

consider the § 3553(a)(2)(A) factors, it would have made § 3583(e) coterminous with § 3553(a).

Congress did not. See Azar v. Allina Health Servs., 587 U.S. ----, 139 S. Ct. 1804, 1813 (2019)

(explaining that courts should not rely on the “doubtful proposition that Congress sought to

accomplish in a ‘surpassingly strange manner’ what it could have accomplished in a much more

straightforward way” (quoting RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S.

639, 647 (2012))).

The context follows from the text.

In Tapia v. United States, the Supreme Court

explained that 18 U.S.C. § 3553(a)(2)(A)–(D) reflects “the four purposes of sentencing

generally”: “retribution, deterrence, incapacitation, and rehabilitation.” 564 U.S. 319, 325

(2011). The statute’s “provisions make clear that a particular purpose may apply differently, or

even not at all, depending on the kind of sentence under consideration.” Id. at 326. Following

the statute’s plain text, “a court may not take account of retribution (the first purpose listed in

§ 3553(a)(2)) when imposing a term of supervised release.” Id. Section § 3583(e), which

pertains to revoking supervised release, is the mirror-image of § 3583(c), which pertains to

imposing a term of supervised release. It follows that both subsections direct district courts not

to consider retribution when imposing or revoking supervised release.

Faced with this obvious hurdle, today’s decision attempts to rewrite Tapia. Of course,

I need not put much gloss on what Justice Kagan straightforwardly said in that opinion: a district

court cannot rely on the § 3553(a)(2)(A) factors when making decisions concerning supervised

release. Tapia, 564 U.S. at 326. Today’s decision attempts to skirt this plain statement through

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two paragraphs of explanation of what Justice Kagan supposedly must have meant. I, like

Justice Kagan, prefer to rely on the actual text of the statute. In any event, today’s attempt to

square what the district court did with Tapia is futile. For one, today’s opinion gets its facts

wrong. It says in conclusory words that no one has shown that the district judge let retribution

guide the decision. Amended Order at 7. Most obviously, Esteras has. Pet. Rehearing En Banc

at 10 (“The district court expressly relied on the section 3553(a)(2)(A) factors—specifically, the

need to punish and to promote respect for the law—when revoking Esteras’ supervised release.”

(emphasis added)). And this assertion of the panel is belied by the plain words the district court

used in the proceeding, which sounded in retribution. Like its take on Tapia, today’s decision

would rather reconceptualize the very words the district court used—“punishment” and

“punitive”—and chalk them up to “set[ting] the stage” rather than an error on the part of the

district court. Of course, “setting the stage” by thinking of the sentence in terms of punishment

is precisely what a district court must not do per the text of the statute. To the extent that Tapia

explains that taking the § 3553(a)(2)(A) factors into account necessarily means taking retribution

into account, today’s decision’s myopic focus on a word here or there entirely misses the point.

Tapia is also instructive on statute-drafting more broadly.

But once again, today’s

decision would rather ignore its clear import. Today’s decision suggests that unless Congress

enacts a separate statutory provision forbidding district courts to take account of certain factors,

as it did in § 3582(a), the purposeful omissions in § 3583(c) and (e) are meaningless. Yet

Congress can accomplish its statutory purposes in a variety of ways, as Tapia recognizes. Again,

the only understanding of § 3583(e) that gives effect to its plain text is that explained by Tapia.

That retributive concerns are not to be taken into account reflects Congress’s judgment of

the purpose of supervised release. The relevant legislative history explicitly states 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.” S. Rep. No. 98-225, at *124 (1983); see also Johnson v. United States,

529 U.S. 694, 708–09 (2000) (citing the Senate Report and discussing the purpose of supervised

release). By contrast, taking the retributive § 3553(a)(2)(A) factors into account when imposing

or revoking supervised release contravenes this congressional purpose and also creates “serious

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constitutional questions . . . by construing revocation and reimprisonment as punishment for the

violation of the conditions of supervised release.” Johnson, 529 U.S. at 700. The Sentencing

Guidelines confirm this understanding:

revocation of supervised release is not meant to

“substantially duplicate the sanctioning role of the court with jurisdiction over a defendant’s new

criminal conduct,” but instead to “sanction primarily the defendant’s breach of trust.” U.S.

Sent’g Guidelines Manual Ch. 7A Intro. (U.S. Sent’g Comm’n 2023).

No doubt, there is some level of overlap between the factors district courts must consider

when revoking supervised release, and those that a district court cannot consider. See Lewis, 498

F. 3d at 400 (explaining that a district court likely takes into account the seriousness of an

offense when considering the nature and circumstances of the offense). But today’s opinion

treats this reality—that there is some degree of overlap—as a virtue, manifestly dishonoring

Congress’s decision to omit the § 3553(a)(2)(A) factors from consideration. Amended Order at

6 (“To think about the one requires the judge to think about the other.”); id. (“To neglect the one

dishonors the other.”). That a district court may consider, to some degree, the seriousness of the

offense, however, does not justify allowing district courts to disregard Congress’s mandate that

retributive concerns should not influence the overall sentence. Put differently, the overlap

problem first identified by Lewis is exaggerated to the extent that a district court can avoid

running afoul of the statute by avoiding viewing revocation of supervised release as retribution.

Perhaps recognizing the futility of any text-based argument, today’s decision reinvents

the overlap argument in the form of a strawman. It suggests that Congress cannot possibly have

meant that district courts should not rely on the § 3553(a)(2)(A) factors when revoking

supervised release, because “Congress requires courts to consider the same set of factors when

first imposing a term of supervised release as when revoking one.” Amended Order at 6. Per

today’s decision, district courts would be forced to “adjourn the hearing after imposing a[n]

[initial] sentence” and “start over with a new unblemished inquiry into the right term of

supervised release” so as to not mistakenly consider the § 3553(a)(2)(A) factors. Id. This

argument is disingenuous. What the statute requires is that district courts not view supervised

release as an additional punishment, and that district courts adjust their rationale and

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considerations accordingly when imposing or revoking supervised release. The district court

manifestly failed to do that here.

What is more, some degree of overlap cannot explain away Congress’s explicit choice to

omit certain sentencing factors from consideration when revoking supervised release. In this

way, the analyses of Lewis and today’s opinion are self-defeating. If Congress believed that

courts would inevitably consider the § 3553(a)(2)(A) factors when revoking supervised release,

it would not have omitted such factors from § 3583. Lewis, 498 F.3d at 400. The same is true if

Congress affirmatively wanted district courts to consider such factors.

Id. at 399–400.

Regardless, bare judicial pragmatism cannot overcome the plain text of the statute, which directs

district courts not to take retributive sentencing factors into account. United States v. Tohono

O’Odham Nation, 563 U.S. 307, 317 (2011) (“[C]onsiderations of policy divorced from the

statute’s text and purpose could not override its meaning.”).

Beyond these fundamental errors, en banc reconsideration is warranted because the Sixth

Circuit’s approach is an outlier among the circuit courts. Lewis and today’s opinion are entirely

untethered from the statutory text, and it would appear that they allow a district court to rely

exclusively on the § 3553(a)(2)(A) factors when revoking supervised release. Lewis, 498 F.3d at

399–400 (holding “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)”). In other words, our cases contain no limits and allow district courts

to disregard § 3583(e) in toto. Though there is a circuit split on this issue, most circuits would

find that a revocation of supervised release principally based on the § 3553(a)(2)(A) factors is

procedurally unreasonable. See, e.g., United States v. Booker, 63 F.4th 1254, 1260 (10th Cir.

2023) (“[I]t is procedural error to consider an unenumerated [§ 3553(a)(2)(A)] factor.”); United

States v. Miqbel, 444 F.3d 1173, 1182–83 (9th Cir. 2006) (holding that “mere reference” to

unenumerated § 3553(a)(2)(A) factors would not be reversible error, but that further

consideration of such factors when revoking supervised release is procedurally unreasonable);

United States v. Rivera, 784 F.3d 1012, 1017 (5th Cir. 2015) (“[A] sentencing error occurs when

an impermissible consideration is a dominant factor in the court’s revocation sentence.”); United

States v. Young, 634 F.3d 233, 241 (3rd Cir. 2011) (recognizing that consideration of

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unenumerated § 3553(a)(2)(A) factors would not be reversible per se error, but that “there may

be a case where a court places undue weight on the” § 3553(a)(2)(A) factors); United States v.

Webb, 738 F.3d 638, 642 (4th Cir. 2013) (“[A]lthough a district court may not impose a

revocation sentence based predominately on the [§ 3553(a)(2)(A) factors], we conclude that

mere reference to such considerations does not render a revocation sentence procedurally

unreasonable.”); United States v. Clay, 752 F.3d 1106, 1108 (7th Cir. 2014) (“[W]e now join the

majority of circuits that have faced this issue and rule that this subsection [§ 3553(a)(2)(A)] may

be considered so long as the district court relies primarily on [enumerated] factors.” (emphasis

added)).

Lewis appears expressly to adopt punishment as a valid rationale for revoking

supervised release, directly contrary to the statute and Congress’s intent. 498 F.3d at 400

(“[A]lthough violations of supervised release generally do not entail conduct as serious as crimes

punishable under the § 3553(a) regime, revocation sentences are similarly intended to ‘sanction,’

or, analogously, to ‘provide just punishment for the offense’ of violating supervised release.”).

Lewis and today’s decision bulldoze over each and every indication of congressional

intent available in favor of an explicitly policy-driven outcome.

That includes plain text,

legislative history, and information from the Sentencing Commission.

“[D]eference to the

supremacy of the Legislature, as well as recognition that Congress[members] typically vote on

the language of a bill, generally requires us to assume that ‘the legislative purpose is expressed

by the ordinary meaning of the words used.’” United States v. Locke, 471 U.S. 84, 95 (1985)

(quoting Richards v. United States, 369 U.S. 1, 9 (1962)). Here, this deference requires that

district courts honor Congress’s explicit choice that supervised release not be an additional

punishment, and that district courts adjust their rationale and considerations accordingly. The

district court failed to do that here. It plainly viewed revocation of supervised release as

punishment, and sentenced Esteras to 24 months’ imprisonment based on impermissible

sentencing factors. R. 439 (Revocation Tr. at 81:17–22, 83:9–11, 85:13–21) (Page ID #2883,

2885, 2887). Because our precedent mistakenly allows a district court to do so, I respectfully

dissent from the denial of rehearing en banc in this case.

27a

Appendix D

No. 23-3422

United States v. Esteras

Page 10

____________________

DISSENT

____________________

GRIFFIN, Circuit Judge, dissenting.

I respectfully dissent from the denial of the Petition for Rehearing En Banc. I would

grant the petition because the question raised is of exceptional importance warranting

consideration and decision by our En Banc Court after full briefing and argument. Fed. R. App.

P. 35(a)(2).

Under United States v. Lewis, district courts may revoke supervised release—and impose

more prison time—for the purpose of punishment, a consideration ostensibly prohibited by the

statutory text. 498 F.3d 393, 399–400 (6th Cir. 2007); see also 18 U.S.C. § 3583(e) (“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),” revoke a term of supervised release); Tapia v. United States,

564 U.S. 319, 326–27 (2011) (explaining that 18 U.S.C. § 3553(a)(2)(A–D) reflects “the four

purposes of sentencing generally” and that § 3553(a)(2)(A) reflects the purpose of punishment).

Lewis’s holding has enormous consequences for the liberty of hundreds of defendants

within our circuit who are sentenced every year for violating supervised-release conditions.

See U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations, 51–52

(July 2020),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-

publications/2020/20200728_Violations.pdf (reflecting an average of 1,685 probation and

supervised-release violations each year in district courts within the Sixth Circuit between 2013

and 2017). Under Lewis, our district courts, when sentencing supervised-release violators, are

more likely to revoke supervised release and impose longer prison terms because they are

permitted to punish the violators.

Under the Federal Rules of Appellate Procedure, cases in which the dispositive issues

“have been authoritatively decided” are not usually set for oral argument. Fed. R. App. P.

34(a)(2)(B). Because of Lewis, this case was a “Rule 34” case and decided summarily. In my

view, given the widespread impact of Lewis and the vigorous debate concerning its viability, as

28a

Appendix D

No. 23-3422

United States v. Esteras

Page 11

articulated by Judge Moore’s dissent and the varying circuit decisions on this issue, this is an

exceptionally important issue warranting full briefing and argument before our En Banc Court.

ENTERED BY ORDER OF THE COURT

___________________________________

Kelly L. Stephens, Clerk

29a

Appendix E

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0048p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

EDGARDO ESTERAS,

Defendant-Appellant.

│

┘

No. 23-3422

On Petition for Rehearing En Banc.

United States District Court for the Northern District of Ohio at Youngstown.

No. 4:14-cr-00425-10—Benita Y. Pearson, District Judge.

Decided and Filed: March 7, 2024

Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.

_________________

COUNSEL

ON PETITION FOR REHEARING EN BANC: Christian J. Grostic, OFFICE OF THE

FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. ON RESPONSE: Matthew

B. Kall, Jason Manion, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for

Appellee.

The court issued an order denying the petition for rehearing en banc. MOORE, J. (pg. 3),

delivered a separate opinion, in which STRANCH, J., joined, dissenting from the denial of the

petition for rehearing en banc. GRIFFIN, J. (pp. 4–5), also delivered a separate opinion, in

which STRANCH and BLOOMEKATZ, JJ., joined, dissenting from the denial of the petition for

rehearing en banc.

30a

Appendix E

No. 23-3422

United States v. Esteras

Page 2

_________________

ORDER

_________________

The court received a petition for rehearing en banc. The original panel has reviewed the

petition for rehearing and concludes that the issues raised in the petition were fully considered

upon the original submission and decision. The petition then was circulated to the full court.

Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied.

31a

Appendix E

No. 23-3422

United States v. Esteras

Page 3

_________________

DISSENT

_________________

KAREN NELSON MOORE, Circuit Judge, dissenting from denial of rehearing en banc.

I adhere to my dissent from the denial of Esteras’s first petition for en banc rehearing, and again

respectfully dissent today. United States v. Esteras, 88 F.4th 1170, 1171–76 (6th Cir. 2023)

(Moore, J., dissenting). I would grant the current petition for rehearing because 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. Esteras, 88 F.4th at 1171–75 (Moore, J., dissenting). Judge Griffin rightly

flags the severe consequences that our precedents create for the hundreds of individuals who face

revocations of supervised release each year, and correctly points out that these consequences and

the shaky foundation of our precedents mean that Esteras’s petition raises questions of

exceptional importance. En banc rehearing remains warranted for all of these reasons.

32a

Appendix E

No. 23-3422

United States v. Esteras

Page 4

_________________

DISSENT

_________________

GRIFFIN, Circuit Judge, dissenting.

As I did after the first en banc poll, United States v. Esteras, 88 F.4th 1170, 1176 (6th

Cir. 2023) (Griffin, J., dissenting from denial of rehearing en banc), I respectfully dissent from

the denial of Esteras’s Second Petition for Rehearing En Banc. I would grant the petition

because the question raised is of exceptional importance warranting consideration and decision

by our En Banc Court after full briefing and argument. Fed. R. App. P. 35(a)(2).

Under United States v. Lewis, district courts may revoke supervised release—and impose

more prison time—for the purpose of punishment, a consideration ostensibly prohibited by the

statutory text. 498 F.3d 393, 399–400 (6th Cir. 2007); see also 18 U.S.C. § 3583(e) (“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)[,] . . . revoke a term of supervised release . . . .”); Concepcion v.

United States, 597 U.S. 481, 494 (2022) (interpreting § 3583(c)—which, like § 3583(e), excludes

§ 3553(a)(2)(A) from its list of “only certain factors”—and noting that exclusion “expressly

preclude[s] district courts from considering the need for retribution”); Tapia v. United States,

564 U.S. 319, 325–26 (2011) (explaining that 18 U.S.C. § 3553(a)(2)(A–D) reflects “the four

purposes of sentencing generally” and that § 3553(a)(2)(A) reflects the purpose of punishment).

Lewis’s holding has enormous consequences for the liberty of hundreds of defendants

within our circuit who are sentenced every year for violating supervised-release conditions.

See U.S. Sent’g Comm’n, Federal Probation and Supervised Release Violations 51–52

(July 2020),

https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-

publications/2020/20200728_Violations.pdf (reflecting an average of 1,685 probation and

supervised-release violations each year in district courts within the Sixth Circuit between 2013

and 2017). Under Lewis, our district courts, when sentencing supervised-release violators, are

more likely to revoke supervised release and impose longer prison terms because they are

permitted to punish the violators.

33a

Appendix E

No. 23-3422

United States v. Esteras

Page 5

Under the Federal Rules of Appellate Procedure, cases in which the dispositive issues

“have been authoritatively decided” are not usually set for oral argument.

Fed. R. App.

P. 34(a)(2)(B). Because of Lewis, this case was a “Rule 34” case and decided summarily. In my

view, given the widespread impact of Lewis and the vigorous debate concerning its viability, as

articulated by Judge Moore’s dissents from the denials of rehearing and the varying circuit

decisions on this issue, this is an exceptionally important issue warranting full briefing and

argument before our En Banc Court.

ENTERED BY ORDER OF THE COURT

___________________________________

Kelly L. Stephens, Clerk

34a

Appendix F

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

EDGARDO ESTERAS,

)

Case No. 4:14-cr-425

Youngstown, Ohio

Tuesday, April 18, 2023

3:11 p.m.

Defendant.

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE BENITA Y. PEARSON1

UNITED STATES DISTRICT JUDGE

SUPERVISED RELEASE VIOLATION HEARING

AND SENTENCING

APPEARANCES:

For the Plaintiff:

Office of the U.S. Attorney

Northern District of Ohio

By: Christopher J. Joyce, Esq.

208 Federal Building

2 South Main Street

Akron, Ohio 44308

(330) 761-0521

christopher.joyce@usdoj.gov

Mary L. Uphold, RDR, CRR

Thomas D. Lambros Federal Building and U.S. Courthouse

125 Market Street, Room 337

Youngstown, Ohio 44503-1780

(330) 884-7424

Mary_Uphold@ohnd.uscourts.gov

Proceedings recorded by mechanical stenography;

transcript produced by computer-aided transcription.

35a

Appendix F

APPEARANCES (CONTINUED):

For the Defendant:

Office of the Federal Public Defender

Northern District of Ohio

By: Christian J. Grostic, Esq.

750 Skylight Office Tower

1660 West Second Street

Cleveland, Ohio 44113

(216) 522-4856

christian_grostic@fd.org

Office of Pretrial Services and Probation:

Michael Zakrajsek

- - 9

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

36a

Appendix F

17:08:20

change her story.

confused.

under oath persuades me to believe that you did not possess

the weapon, that you did not point it at that household,

that you did not discharge it at least three times.

17:08:38

17:08:54

17:09:11

Nothing she said that was of significance while

Now, regarding the new law violation, I wish I

were better versed in the ordinances, regulations, the

actual law of Youngstown, knowing its elements.

that your behavior at targeting the house with a weapon and

actually assaulting the car with at least three bullets, the

casing of one which was found in the driveway, match the

elements.

matter.

hearing, both are Grade C violations.

the same penalties regardless of whether I find that you

violated your term of supervised release in one or two ways.

So I find that the new law violation and

Ms. Infante's corroboration of it by presenting herself at

Youngstown Municipal Court the next day is evidence that I

can consider in the punishment I will issue today.

find explicitly that you violated your term of supervision

by possessing a weapon.

17:09:28

But only enough to make her appear

But I just don't know.

I suspect

And it really doesn't

Because as I told counsel at the beginning of the

You are subject to

But I

I will allow you to allocute now, and then I will

respond by imposing consequences.

to speak if you would like to be heard.

MARY L. UPHOLD, RDR, CRR

You have the opportunity

(330) 884-7424

37a

Appendix F

(Discussion held off the record between the defendant

and Mr. Grostic.)

17:09:53

THE DEFENDANT:

that much to say.

THE COURT:

THE DEFENDANT:

17:10:33

17:10:47

MR. GROSTIC:

What can I say if you -- I just

Okay.

If I could have one moment,

Your Honor.

THE COURT:

Certainly.

(Discussion held off the record between the defendant

and Mr. Grostic.)

MR. GROSTIC:

Your Honor, after discussion, which

I appreciate the Court's indulging me, Mr. Esteras has

confirmed with me that he does not want to say anything

further.

THE COURT:

That's fine, Mr. Esteras.

Certainly.

You've been before a

federal judge at least three times facing a sentencing.

first time was my colleague, Judge Polster.

was me.

17:11:06

You choose not to allocute?

don't.

17:10:06

If -- it's -- I don't.

I really ain't got -- I ain't got

The

The last time

This time is also me meting out a sentence.

So I understand that you understand the right you

have and the right you give up.

of supervised release at least twice.

sentence upon you the last time, I sentenced you for the

MARY L. UPHOLD, RDR, CRR

You have been under a term

When I imposed

(330) 884-7424

38a

Appendix F

17:11:25

commission of the crime that was on my docket, conspiracy to

distribute heroin, and I also sentenced you for the

violation of the earlier term of supervision imposed that

you were under when you were indicted in the new case then

on my docket, and that was possession with intent --

conspiracy to possess with intent cocaine and cocaine base.

17:11:45

So you are no stranger to law violations and no

stranger to federal court.

what's been done before isn't sufficient enough to deter

you, to encourage you to be respectful of the law, to be

law-abiding.

17:11:59

17:12:20

Even things I heard in the video that were

repeated today, it appears that you assault that household

regularly.

That you argue in a violent way with Ms. Infante

regularly.

I am not really sure what it will require for

you to learn that enough is enough.

probation by Judge Polster.

sentences, 15 months on that term of supervision violation

for Judge Polster; for my own case, 12 months.

consecutively.

do better.

17:12:34

My worry for you, sir, is that

You were given

I imposed two rather lenient

I ran them

I thought 27 months might encourage you to

It was with some reluctance, a great deal

actually, that I even suspended the GED qualification,

thinking that perhaps if you were to become better educated,

prove to yourself and others that you can read and write at

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

39a

Appendix F

17:12:49

17:13:10

at least a high school level, you might begin to see

yourself as something other than a law violator, someone who

hits women, someone who disturbs children in the middle of

the night.

DiMaiolo was at that household at about 3:28 a.m. on a

school night.

school-aged persons in that video, and yet they were

awake -- not all of them were school-aged, of course --

because you had assaulted the car and the household with

your intentions and broken the TV.

17:13:26

17:13:45

Late January.

Vacation is over.

There were

One of the youngsters said, "I was scared.

Now I

can't watch TV."

children shouldn't grow up afraid of what their father or

their mother's boyfriend might do to them at night.

That might seem insignificant to you, but

When I consider the guidance given to us by

Officer Zakrajsek that I've confirmed with you, is not

objected to, and in my opinion is correct, you are subject,

pursuant to the advisory guidelines, to 6 to 12 months.

know that your offense that's brought you here on my docket

carries a lifetime of supervision.

17:14:00

My reading of the police report is that Officer

Having found that you are in violation of that

term of supervised release by the preponderance of the

evidence, I must escalate the consequences imposed.

do here impose escalated consequences by exercising my

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

And I

40a

Appendix F

17:14:21

17:14:38

17:14:54

17:15:15

discretion to vary upwards, above even the high end of the

advisory guidelines, because your behavior is not average,

it's not typical, it's not mine run, it's exceptional.

disrespectful.

And it must stop.

And if you cannot stop yourself, I will separate

you from society for long enough to at least allow you to

reconsider your behavior.

under the new term of supervision that I will impose, you

will do better.

will understand that never possessing a weapon or dangerous

device or a single bullet is meant for you for the rest of

your natural life.

And hopefully when you return

You will think before you act.

And you

Please listen as I formally impose consequences.

I revoke your term of supervised release.

hereby impose a term of incarceration of 24 months.

term of supervised release of three years.

supervised release that I imposed earlier, the last time I

sentenced you in September of 2018, is reimposed unless it's

been met.

again.

satisfied.

17:15:31

It's dangerous.

It's

A new

Every term of

For instance, I don't require you to obtain a GED

If you've paid your special assessment, that's

But every other term, including substance abuse

treatment and testing, a search and seizure provision,

mental health treatment are the ones I am listing simply

because I believe they have likely not been met.

MARY L. UPHOLD, RDR, CRR

And if --

(330) 884-7424

41a

Appendix F

I mean, likely are those that are capable of being repeated

and shall be repeated.

17:15:48

17:16:01

17:16:17

17:16:44

I am adding, for the

first six months of your release -- keep in mind, I can

incarcerate you for up to three years.

months.

three-year term of supervised release, for the first six

months, you are going to be on location monitoring with a

curfew.

I have stopped at 24

But once you're released to start this new

Mr. Zakrajsek, Mr. Esteras goes nowhere without

the explicit permission of his supervising probation

officer.

probation office.

he's unable to find such a place, then he'll start his term

of release by living in a residential reentry center until

he has enough money to pay his own rent and live in a place

that is suitable.

17:16:34

And I am adding a new one.

He shall only live at a place approved by the

Make sure there are no weapons there.

I order that this curfew allow him to work, to

attend to medical appointments as necessary, and to only be

in the presence of the victim and the minor children who

live with him with the permission of the supervising

probation officer.

Is all of that clear, Mr. Esteras?

THE DEFENDANT:

THE COURT:

Yes, Your Honor.

Sir, I have revoked your term of

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

42a

Appendix F

17:17:00

supervised release.

appeal the sentence that I have imposed.

limit.

the date on which I reduce to writing the sentence I've

imposed.

filing a notice of appeal, you may have forever waived your

appellate rights.

17:17:13

17:17:39

17:17:54

You've heard this before.

There is still the

It remains 14 days from

If you allow that 14-day period to go by without

Mr. Grostic, will you speak with your client about

his appellate rights?

MR. GROSTIC:

THE COURT:

17:17:22

You have a new term -- a new ability to

Yes, Your Honor.

Should he ask you to do so, will you

timely file a notice of appeal for him?

MR. GROSTIC:

THE COURT:

Yes, Your Honor.

You should know, Mr. Esteras, as you

likely do, if you cannot afford counsel, just like you do

not pay Mr. Grostic or his office, counsel will be appointed

to represent you free of charge.

reason you don't timely file a notice of appeal.

Do you understand that?

THE DEFENDANT:

Yes, Your Honor.

THE COURT:

So that should not be the

(Nodding head up and down.)

Mr. Zakrajsek, you have heard me

reimpose conditions that are obviously not completed and are

capable of being repeated, and I believe will be of

assistance to Mr. Esteras when he returns to the community.

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

43a

Appendix F

And I have added six months of location monitoring with a

curfew.

17:18:05

17:18:19

17:18:35

17:18:55

at this time?

OFFICER ZAKRAJSEK:

Your Honor, I would like to

petition the Court to consider possibly an anger management

program as well due to his anger issues.

THE COURT:

excellent suggestion.

Thank you.

I think that's an

So in the past, Mr. Esteras, I have ordered that

you be subjected to mental health treatment.

that again.

treatment you'll undergo after that evaluation will be anger

management.

I am ordering

It will start with an evaluation.

Part of the

If you do behave in the way that the violation

that's brought you to court seems to indicate is a regular

occurrence, you must learn to control yourself or you are

likely going to do something that is going to separate you

from society for a much longer period than just 24 months.

So I do impose, as a component of mental health,

anger management.

What else, Mr. Zakrajsek?

OFFICER ZAKRAJSEK:

17:19:04

Is there anything else you'd like me to consider

Nothing further, Your Honor.

Thank you.

THE COURT:

Thank you for your work in this case.

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

44a

Appendix F

the terms of Mr. Esteras's three years of supervised

release?

17:19:23

17:19:35

17:19:52

17:20:04

MR. JOYCE:

Your Honor, I believe the conditions

that you have outlined here, with the addition from -- the

additional recommend by Mr. Zakrajsek are appropriate, and I

would offer nothing additional.

THE COURT:

imposed, Government's Counsel.

MR. JOYCE:

I have no objection, Your Honor.

THE COURT:

Mr. Grostic, why don't I start by

Thank you.

Your objection to the sentence

asking you what you think I can do to improve the conditions

of supervised release.

standard, and the conditions I've just outlined are those

that fall under special conditions.

Of course, all of the mandatory,

MR. GROSTIC:

THE COURT:

(Nodding head up and down.)

Thank you for nodding that you

understood that.

should impose that will assist your client or impose in a

different way, like Mr. Zakrajsek suggested regarding

refining mental health, it's not limited to anger

management, but that's now a specific component, is there

anything else you'd suggest?

17:20:19

Mr. Joyce, what do you believe I can do to improve

If there are any others that you believe I

MR. GROSTIC:

I don't believe so, Your Honor, as

far as conditions of supervised release.

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

45a

Appendix F

17:20:32

17:21:01

17:21:14

17:21:20

for a recommendation close to home.

THE COURT:

And close to home, meaning here in the

Northern District of Ohio?

MR. GROSTIC:

THE COURT:

Where were you housed during your last term of

17:20:43

We would ask, as part of the custodial sentence,

Yes.

I will make that recommendation.

incarceration, Mr. Esteras?

THE DEFENDANT:

THE COURT:

Hazelton.

I don't know what the

policy of the Bureau of Prisons is regarding sending you

back to a place where you've been.

prohibition, if they were to send you back to Hazelton, is

that something you'd like me to ask for, or would you rather

something even closer to home, such as Elkton?

THE DEFENDANT:

THE COURT:

THE DEFENDANT:

THE COURT:

Yeah, closer to home.

More like Elkton than Hazelton?

Yes, ma'am.

All right.

I will make that

recommendation.

What else?

are any, Mr. Grostic?

MR. GROSTIC:

THE COURT:

If there is no

What other recommendations, if there

May I have one moment, Your Honor?

Certainly.

(Discussion held off the record between the defendant

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

46a

Appendix F

17:21:41

and Mr. Grostic.)

MR. GROSTIC:

request that the Court recommend that he be evaluated for

placement in any applicable drug treatment program, as well

as any applicable behavioral management or mental health

treatment program for which he might qualify.

17:21:57

17:22:17

THE COURT:

I will make both of those

My belief, Mr. Esteras, is that a 24-month term,

while longer than one you would like, I'm sure, is not long

enough for the most intensive drug treatment program, but I

am sure there are others that may be helpful to you.

hope that along with my recommendation, you will sign up and

apply yourself to any programs that you're admitted.

will recommend those for behavioral management and drug

treatment.

What else, if anything else?

And I

I am open to

adopting whatever you recommend if it will help Mr. Esteras.

17:22:44

Thank you.

recommendations as well.

17:22:31

Your Honor, Mr. Esteras would also

MR. GROSTIC:

No, nothing further, Your Honor.

Thank you.

THE COURT:

Your objection to the sentence imposed

on behalf of your client, Mr. Grostic.

MR. GROSTIC:

Your Honor, I believe the Court

indicated that it considered factors -- the factor in

Section 3553(a)(2)(A) as part of its sentence.

MARY L. UPHOLD, RDR, CRR

I have

(330) 884-7424

47a

Appendix F

17:23:12

17:23:31

objected to that in the past.

Sixth Circuit has held that that is something the Court can

consider, but I would simply like to lodge that objection

for the record.

17:24:05

17:24:27

Mr. Grostic, when you specify Section

3553(a)(2)(A), are you referring to underneath -- (2) is the

need for the sentence to be imposed, correct?

specifically objecting to, "to reflect the seriousness of

the offense, to promote respect for the law, and provide

just punishment for the offense," that's what you're

directing your objection to?

MR. GROSTIC:

THE COURT:

17:23:44

THE COURT:

I am aware that actually the

You are

That's correct, Your Honor.

To any one of those three subfactors

or all of them?

MR. GROSTIC:

THE COURT:

All of them, yes.

Well, I would agree with you, part of

my contemplation certainly is the need for the sentence

imposed, to promote respect for the law.

deterring Mr. Esteras as well.

it's fair for you to infer, concern about the safety of the

community, which is later beyond (a)(2).

referenced the ability even to depart or, pardon me, vary

upwards to separate Mr. Esteras from the average, typical,

mine run-type defendant.

I mentioned

I also meant, and I think

And I specifically

So I think I have sufficiently addressed what your

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

48a

Appendix F

objection is, and you are entitled to it.

I will add just one other point.

17:24:45

17:25:06

17:25:26

17:26:00

your objection, you will be able to tell me.

When I told counsel earlier that this is a 104(a)

hearing, under the rules of evidence, that they're

suspended, I still, being a student of the rules of

evidence, it is hard to put them out of your mind.

though I am not obligated to explicitly make calls on

matters, objections, sustain, overrule them, I still try to

hew closely to considering evidence in a way that makes

sense when the rules of evidence are considered.

And even

And I want the record to reflect that when I did

that, and I suspect Mr. Grostic might have been doing this

as well, I kept in mind Rule of Evidence 803.

Evidence 803 is one of those rules that outlines exceptions

to the rules against hearsay, and it explicitly says,

"Regardless of whether a declarant is available as a

witness, Judge, you can consider certain things."

17:25:42

If it enlarges

Rule of

And these are things that are well established to

be truthful, or more likely than not, I should say, to be

truthful, credible.

impressions, statements made while explaining an event or

condition, those statements made immediately after the

declarant perceived it.

And they include present sense

So like those statements, Mr. Esteras, that

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

49a

Appendix F

Ms. Infante made as soon as Officer DiMaiolo showed up, I

considered, because I believe, as Mr. Joyce said, she was

her most credible at those moments.

17:26:18

17:26:36

startling event or condition made while the declarant was

under the stress of the excitement that it caused."

Those folks in that house, the youngster, the

woman with the box braids, the two young women who were

standing on either side of Ms. Infante, one of whom was the

one who said, "I was scared.

said, "Why he point a gun at us?"

excited utterances and found them to be credible.

17:26:54

17:27:33

I can't watch TV."

The other

I considered those

"Then existing mental, emotional, or physical

condition" is another one of those categories that has sort

of a threshold, a built-in credibility.

accept them, but I use that as a way to cabin what I was

hearing on the witness stand compared to what I had heard in

that video.

17:27:11

"Excited utterance, a statement relating to a

I don't have to

So I used those things, Mr. Grostic.

And I think

that was part of the argument made by Mr. Joyce to

corroborate what I heard on the video and to discredit what

I heard from Ms. Infante during most of her testimony.

There were nuggets of truth, very few of them.

time she made up answers purposefully to distinguish today's

testimony from what we saw in the video.

MARY L. UPHOLD, RDR, CRR

Most of the

(330) 884-7424

50a

Appendix F

If you'd like to enlarge your objection, you have

every right to and I'll allow it, please.

17:27:42

MR. GROSTIC:

Thank you.

THE COURT:

Thank you for the work you've done, Counselors, in

17:28:12

Mr. Esteras, I meant it when I said earlier that I

am proud of you for earning your GED.

after you knew you were not obligated to do it, you

persisted and you did it.

17:28:42

That told me, even

My hope is you'll give some thoughts to your

condition, your own circumstances, your role in these

conditions and circumstances, and you will continue despite

what you think anyone thinks about you, go forward, improve

yourself and have a better life.

that.

17:28:24

Thank you.

making a full record.

17:27:58

No, nothing further, Your Honor.

I still believe you can do

I could have given you the three years.

I have

not.

earned what I have given you.

forward.

be punitive.

curfew is meant to restrict your freedom, make sure you're

not doing things that you and I will regret.

the anger management, the other terms that are there are

I have given you what I have given you.

You have

But my hope is you'll go

The three years of supervised release won't only

Meaning the location monitoring with the

MARY L. UPHOLD, RDR, CRR

But the terms,

(330) 884-7424

51a

Appendix F

17:29:05

there to bolster you, help you to do better going forward.

You are still a young man.

different lifestyle.

I hope you will choose a

The hearing is adjourned.

THE CLERK:

All rise.

(Proceedings concluded at 5:28 p.m.)

- - -

C E R T I F I C A T E

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

/s/ Mary L. Uphold

Mary L. Uphold, RDR, CRR

June 22, 2023

Date

MARY L. UPHOLD, RDR, CRR

(330) 884-7424

52a

Appendix G

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0052p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

TIMOTHY MICHAEL JAIMEZ fka Timothy M. Watters,

Defendant-Appellant.

│

┘

No. 23-3189

Appeal from the United States District Court for the Northern District of Ohio at Toledo.

No. 3:10-cr-00004-2—James G. Carr, District Judge.

Decided and Filed: March 12, 2024

Before: GRIFFIN, THAPAR, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Andrew R. Schuman, Bowling Green, Ohio, Kevin M. Schad, FEDERAL PUBLIC

DEFENDER’S OFFICE, Cincinnati, Ohio, for Appellant. Ava R. Dustin, Dexter Phillips,

UNITED STATES ATTORNEY’S OFFICE, Toledo, Ohio, for Appellee.

_________________

OPINION

_________________

THAPAR, Circuit Judge. Timothy Jaimez pled guilty to federal drug charges. After his

second supervised-release violation, the district court sentenced him to sixty months’

imprisonment. Because that sentence is procedurally and substantively reasonable, we affirm.

53a

Appendix G

No. 23-3189

United States v. Jaimez

Page 2

Timothy Jaimez pled guilty to conspiring to possess narcotics with the intent to distribute

them. After serving time in prison, he began a term of supervised release. While on release,

Jaimez used drugs, failed to maintain employment, and failed to truthfully disclose financial

information to his probation officer. So a court revoked his release.

When Jaimez began a second term of supervised release, his behavior didn’t improve.

Police found him transporting marijuana in his car with the co-felons from his original

conviction. And at Jaimez’s properties, police found cocaine base, a shell casing, and a drug

press.

Based on this conduct, an Ohio court found Jaimez guilty of attempting to traffic

marijuana.

The United States then sought to revoke Jaimez’s release. It alleged three violations:

(1) being charged with a new crime, (2) associating with known felons, and (3) possessing drug

paraphernalia. In line with probation’s report, the court classified Jaimez’s first violation as

“Grade A” under the Sentencing Guidelines.

See U.S.S.G. § 7B1.1(a)(1).

That carried a

sentencing range of fifty-one to sixty months’ incarceration. See id. § 7B1.4(a); 18 U.S.C.

§ 3583(e)(3).

Over Jaimez’s objection, the district court sentenced him to sixty months’

incarceration, followed by six years of supervised release.

II.

Jaimez now appeals, claiming his sentence is procedurally and substantively

unreasonable. Applying an abuse-of-discretion standard, we conclude that it’s neither. See

United States v. Adams, 873 F.3d 512, 516–17 (6th Cir. 2017).

Jaimez first challenges his sentence’s procedural reasonableness. He argues the court

(1) inadequately explained his sentence, (2) improperly considered section 3553(a)(2)(A) factors,

and (3) incorrectly classified his release violation as Grade A. Jaimez is wrong on all three

counts.

54a

Appendix G

No. 23-3189

United States v. Jaimez

Page 3

Adequate Explanation. A court need not “engage in a ritualistic incantation” of statutory

sentencing factors. United States v. Chandler, 419 F.3d 484, 488 (6th Cir. 2005) (citation

omitted). Nor must a court explicitly address every factor. United States v. Collington, 461 F.3d

805, 809 (6th Cir. 2006). Rather, the record needs to show only that the court considered the

applicable factors. United States v. McBride, 434 F.3d 470, 474 (6th Cir. 2006).

Jaimez’s sentencing passes this very easy test. During sentencing, the court discussed

Jaimez’s Guidelines range with the parties. See 18 U.S.C. §§ 3553(a)(4)(B), 3583(e). The court

referenced Jaimez’s criminal history and previous release violations. See id. §§ 3553(a)(1),

3583(e). The court also sought to deter Jaimez and others from violating release conditions. See

id. §§ 3553(a)(2)(B), 3583(e). And the court recognized a need to promote respect for the law

and protect the public. See id. §§ 3553(a)(2)(A), (C), 3583(e); see also United States v. Lewis,

498 F.3d 393, 399 (6th Cir. 2007). Given this record, it’s clear the court considered the federal

sentencing factors.

Section 3553(a)(2)(A) Factors. Jaimez next takes issue with the factors the court did

expressly consider: the seriousness of his offense, the promotion of respect for the law, and the

provision of just punishment. Jaimez argues the court shouldn’t have considered these factors

because the statute governing revocation doesn’t require it. See 18 U.S.C. § 3583(e). But we’ve

made clear that district courts may nonetheless consider these factors when imposing revocation

sentences. See Lewis, 498 F.3d at 399–400; United States v. Esteras, 88 F.4th 1163, 1167–70

(6th Cir. 2023), reh’g en banc denied, --- F.4th ----, 2024 WL 981140 (6th Cir. 2024).1 Thus, it

wasn’t unreasonable for the court to consider them here.

Violation Grade. A release violation is “Grade A” if it involves drug conduct punishable

by more than a year in prison. U.S.S.G. § 7B1.1(a)(1). Here, there was sufficient evidence of

such conduct. First, police witnessed Jaimez and his co-felons transport “just under a kilogram”

of marijuana in his car. R. 381, Pg. ID 2169. Second, Jaimez’s car smelled like marijuana,

suggesting Jaimez—a past drug user—knew there were drugs in it. Third, an Ohio court found

Judge Griffin adheres to his dissent from the denial of the petition to rehear Esteras en banc. United

States v. Esteras, --- F.4th ----, 2024 WL 981140, at *1 (6th Cir. 2024) (Griffin, J., dissenting from denial of

rehearing en banc).

55a

Appendix G

No. 23-3189

United States v. Jaimez

Page 4

Jaimez guilty of attempted marijuana trafficking, indicating he knew or had reason to know the

marijuana was intended for resale. See Ohio Rev. Code Ann. § 2923.02(A) (noting that an

“attempt” conviction means the defendant met any “knowledge” or “purpose” elements of the

underlying crime); id. § 2925.03(A)(2) (defining mens rea for drug trafficking). Based on this

evidence, a court could conclude Jaimez knowingly transported just under a kilogram of

marijuana, aware it was intended for resale.

See 18 U.S.C. § 3583(e)(3) (setting a

preponderance-of-the-evidence standard for revocation decisions). And under Ohio law, that’s

punishable by over a year in prison.2

Ohio Rev. Code Ann. §§ 2925.03(A)(2), (C)(3)(c),

2929.14(A)(4). Thus, the district court correctly graded Jaimez’s violation.

Jaimez next alleges his sentence is substantively unreasonable. In particular, he argues

the court (1) placed too much weight on the conduct underlying his release violation, (2) inflicted

“double punishment” by considering conduct for which Ohio already punished him, and

(3) imposed a sentence that was too long in light of mitigating evidence. Again, Jaimez is wrong

on all three counts.

Jaimez’s Violative Conduct. At sentencing, the district court “keyed in” on the conduct

underlying Jaimez’s release violation. Appellant Suppl. Br. 2. For good reason: Jaimez was

originally convicted for conspiring to distribute drugs, and he had previously violated his

supervised release by using drugs. Given this background, the conduct underlying his most

recent violation—transporting drugs with the intent to resell them—was particularly relevant.

When imposing revocation sentences, courts may consider the need to promote deterrence and

respect for the law. 18 U.S.C. §§ 3553(a)(2)(A)–(B), 3583(e); see Lewis, 498 F.3d at 399.

Jaimez’s most recent violation demonstrated a flagrant lack of both. Thus, it was reasonable for

the court to give substantial weight to that violation at sentencing. Cf. United States v. Zobel,

696 F.3d 558, 571–72 (6th Cir. 2012).

Ohio found Jaimez guilty of only a misdemeanor-level marijuana offense. But when a federal court

grades a release violation, it considers the defendant’s actual conduct, not just the record of conviction. United

States v. Montgomery, 893 F.3d 935, 940 (6th Cir. 2018).

56a

Appendix G

No. 23-3189

United States v. Jaimez

Page 5

Double Punishment. Jaimez next argues he received “double punishment” for his drugtrafficking activity. Appellant Suppl. Br. 3. But this presents no error, either. To be sure, Ohio

already punished Jaimez for the drug-related conduct that the district court considered at

sentencing. But that’s the point: the Sentencing Guidelines explicitly tell courts to consider the

criminal nature of a release violation. See U.S.S.G. §§ 7B1.1(a), .4(a). And the Supreme Court

has long held that federal and state governments may separately punish an individual for the

same conduct. See, e.g., Heath v. Alabama, 474 U.S. 82, 88 (1985); Fox v. Ohio, 46 U.S. (5

How.) 410, 435 (1847).

Jaimez’s argument also fails for a simpler reason:

revocation sentences are never

“punishment” for a release violation. Rather, these sentences are “part of the penalty for the

initial offense”—in this case, Jaimez’s original narcotics-distribution conspiracy. Johnson v.

United States, 529 U.S. 694, 700–01 (2000). Indeed, even when a court expressly considers the

conduct underlying a release violation, we don’t interpret the resulting sentence as “punishment”

for that conduct. See, e.g., United States v. Johnson, 640 F.3d 195, 203 (6th Cir. 2011) (holding

that a revocation sentence is a “sanction” for a defendant’s “breach of trust,” not a “punishment

for [his] violation” (citation omitted)); United States v. Jones, 81 F.4th 591, 602 n.7 (6th Cir.

2023) (same); Esteras, 88 F.4th at 1170 (holding that a court’s consideration of violative conduct

doesn’t make a revocation sentence punitive, even when the court uses the word “punishment”).

Thus, the district court’s sentence didn’t “double punish” Jaimez for his violation.

Sentence Length. At the outset, we presume Jaimez’s within-Guidelines sentence is

reasonable. See Jones, 81 F.4th at 602. Jaimez contends otherwise. He argues the court

shouldn’t have applied the maximum sentence because his release violations could have been

worse. He also asserts that he’s been trying to “rebuild[] his life.” Reply Br. 3. And he

emphasizes that he didn’t contest his release violations or his Ohio drug charge. This, he claims,

demonstrates his “remorse.” Id.

But Jaimez’s arguments aren’t enough to establish unreasonableness. The fact Jaimez

could’ve committed a worse offense doesn’t render the statutory maximum unreasonable. Every

drug trafficker could have shipped more drugs, just like every murderer could have killed an

additional person. That doesn’t mean courts should never apply a maximum sentence.

57a

Appendix G

No. 23-3189

United States v. Jaimez

Page 6

Nor can Jaimez show unreasonableness by arguing he would have given more weight to

mitigating evidence. See United States v. Ely, 468 F.3d 399, 404 (6th Cir. 2006). And even if he

could, his mitigating evidence is paper-thin. While his words suggested remorse, his conduct did

not. At Jaimez’s last revocation hearing, the court warned him that he’d receive a sixty-month

sentence if he didn’t straighten out his act. That didn’t stop Jaimez from continuing to flout the

law. And at some point, protecting the public must trump a defendant’s desire to “rebuild his

life.” This is one such case.

We affirm.

58a

Appendix H

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

United States of America,

Case No. 3:10cr4-2

Plaintiff

Timothy M. Watters

ORDER

Defendant

This matter was heard on 2/17/2023 before the undersigned for a Combined and Continued

Supervised Release Violation Hearing with co-defendant Jose A. Carrizales. The Government counsel

was represented by attorneys Ava Dustin and Alissa Sterling. The Defendant appeared and was

represented by attorney Andrew R. Schuman. Probation Officer Cornelius Hagins was also present. The

Government moves to dismiss violation 3 of the supervised release violation report. Defendant

admits to violations 1, 2 and 4 in the supervised release violation report. The court finds that the

defendant has violated the conditions of supervision contained in the supervised release violation

report.

It is hereby

Ordered that:

1. The Defendant to be committed to the custody of the Bureau of Prisons for a term of 60 months

with a 6-year term of supervised release.

2. All previous terms and conditions of supervision remain in full force and effect.

3. The court addresses the 3553 (a) factors on record.

4. The Appeal (14 days) noted on record.

5. Defendant Watters [ 353] combined motion is withdrawn as moot.

6. The no-contact order as to both Defendants also removed.

So ordered.

s/James G. Carr

Sr. U. S. District Court Judge

59a

Appendix I

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

UNITED STATES DISTRICT COURT,

Plaintiff,

TIMOTHY JAIMEZ & JOSE CARRIZALES,

Defendants.

Case No.:3:10CR4

Toledo, Ohio

February 17, 2023

-----------------------------------------------------------

TRANSCRIPT OF COMBINED AND CONTINUED SUPERVISED RELEASE

VIOLATION HEARINGS

BEFORE THE HONORABLE JAMES G. CARR

UNITED STATES DISTRICT JUDGE

APPEARANCES:

On Behalf of the Government:

Alissa Sterling

Ava Rotell Dustin

Office of the U.S. Attorney

Toledo, Ohio 43604

On Behalf of Defendant, Jaimez:

Andrew Schuman, Esq.

Bowling Green, Ohio 43402

On Behalf of Defendant, Carrizales:

Peter J. Wagner, Esq.

Law Offices Of Peter Wagner

Toledo, Ohio 43604

Court Reporter:

Angela Nixon, RMR, CRR

Official Court Reporter

U.S. District Court

60a

Appendix I

way to bring them kids back home to their parents.

Unfortunately I was too late.

Blade, but it didn't hurt me at all, Your Honor, because I

have no connection to the streets anymore.

said, I put myself in a very bad situation time and time

again.

nobody's fault but my own.

dragging down people that are close to me and people who I

do -- I do care about and love, that I affect their lives

as well.

I've taken my own -- when I'm in the wrong, I take

responsibility and I keep on moving.

agree with whatever you give me, Your Honor.

And, yes, it was put in The

So, like I

It's not your fault, it's not Ms. Dustin's fault,

I'm just sorry that I'm

So as of -- since the beginning of all of this,

And with that, I

Thank you.

THE COURT:

MR. SCHUMAN:

THE COURT:

Anything further from the government?

MS. DUSTIN:

Nothing, Your Honor.

THE COURT:

Pursuant to the Sentencing Reform Act

Mr. Schuman, anything further?

No, thank you, Your Honor.

of 1984 and 18 U.S. Code Section 3553(a), judgment of this

Court that defendant be and hereby committed to the custody

of the Bureau of Prisons to serve a term of 60 months.

Upon completion of that term, you should report

within 72 hours U.S. Pretrial and Probation Office in this

district or U.S. Probation Office in whatever district you

are released.

61a

Appendix I

I will, likewise, strongly encourage the Bureau

to let you serve your time in Milan.

you're a threat, or security issue, or anything else.

the extent that their mechanistic computation might put you

at a higher security level, I would encourage them to look

past that and enable both of you to remain in contact with

your people here in Toledo.

I don't know if

I'm going to place you, likewise, on a period of

six more years of supervised release.

with you, I'm going to be very candid with both of you, I

want this Court to have that string.

abide by each term and condition of supervised release,

you'll be right back in front of me or another Judge.

you'll wind up, yet again -- but you've shown that

basically, now twice, the terms and conditions of

supervised release are optional.

optional.

interest, and the interest of the community, and to protect

the community, and also anybody who knows what's happening

here today gets it that disregarding the terms and

conditions of supervised release, particularly in the

quantity -- if large quantity of Controlled Substance is

involved, you're going to get punished.

pay a severe consequence.

Mr. Watters.

I'll be very candid

And if you can't

And

And they are not

And I want to make sure, in terms of your own

You're going to

I hope you understand that,

You've went through it, I remember it

62a

Appendix I

vividly, I remember correctly Officer Robinson was just

trying to get some financial information, you were

providing her with statements about your employment and

occupation and so forth.

recall correctly, she had to go knocking on doors of banks.

It was an exhaustive time consuming effort on her part that

should not -- she should not have had to take the time to

get the information she did had you been honest with her.

You blew her off, you blew off the conditions of supervised

release about responding to the request for financial

information.

with your brother and Mr. Carrizales and the garbage bag

with a lot of marijuana in it, upward of a kilo, once

again, you were paying no attention to the terms and

conditions of supervised release.

continued supervised release is to try to see to it that,

at long last, you get it, and also to serve -- not just try

to see to it that you do, but that you learn to comply with

what The Court and the law tells you you have to do.

She wanted to know.

And if I

And at least that night when you're out there

And my lengthy term of

Also to make clear to the public generally that

someone like yourself doesn't get it, then they're going to

get prison time, and a lot of it.

sentence.

That's the purpose of my

You will report to the pretrial service and

probation office.

All of the previous terms and conditions

63a

Appendix I

will be reimposed.

And Officer Hagins, is there anything else at

this time?

undertaking to obtain and maintain lawful gainful

employment, and to cooperate with the probation officer and

your officer's efforts in that regard.

There'll be the special condition about

Once again, you'll be required to provide,

promptly and accurately, any requested financial

information that the probation officer may ask you to

provide.

Officer Hagins, any further special conditions

you'd like me to impose or reimpose?

PROBATION:

No, Your Honor.

THE COURT:

Okay.

I believe I expressed my --

the -- my reasons for imposition of this sentence.

are to protect the public.

understanding of compliance of the terms and conditions,

individual deterrence, and public deterrence.

Court there's no such thing as an optional condition of

supervision, just as there's no optional condition when

you're on pretrial release.

is a consequence of not obeying a court order.

before, Mr. Watters, you're not in The State system

anymore.

They

They are to encourage

In this

They're court orders, and this

I told you

We care, we pay attention, and we respond.

I have considered your background, history and

64a

Appendix I

characteristics, your prior criminal record with which I'm

obviously quite familiar.

looking at this with the overall circumstances would find

that this is both a just and deserved sanction, and would

hope that it would enhance respect for the law.

And I do think that somebody

Ms. Dustin, anything further you want me to say

about the 3553(a) factors?

MS. DUSTIN:

Perhaps just addressing the

deterrence factor.

THE COURT:

I can't quite hear you.

MS. DUSTIN:

Perhaps address the deterrence

factor, Your Honor.

THE COURT:

I thought I had, both individual and

public deterrence.

you come to Federal Court, you're in the big leagues.

play hard ball.

shrug of the shoulders.

you don't take that chance, we move things up a notch.

you're really Exhibit A in that regard, Mr. Watters.

sorry that you are, but I think it's necessary that you be

so that people understand they can't be out abroad in the

company of people you shouldn't be with doing things that

the law prohibits and expect -- if you get caught, we'll

simply reinstate the terms and conditions of supervised

release and tell you to behave, tell you to do that,

I hope others hear about this.

When

There's no paddle ball here, okay, no

We give you a chance at a break,

And

I'm

65a

Appendix I

because that's the bottom line when we get right down to

it.

I do believe that the sentence is sufficient but

not greater than necessary to get your attention, to see to

it, I hope, that once you are out, you will, at long last,

learn that lesson.

you don't want to do it, you may desire to do something

else, as long as you're on supervised release for this

Court, you've got to do what this Court, myself, and the

probation officer says.

if you don't and you come back, whoever sees you then,

whether it's I or somebody else, is going to look at this,

and they're going to ask, just as I did, implicitly, how

high is up, because going up as high as I can so that I

believe it's necessary, particularly in your circumstance,

to make clear that you've got to do what the law and The

Court requires.

happen to somebody else who hears about it.

similar situation, I hope they get the lesson that that's

what's going to happen to them.

the community.

You've got to do, no matter how much

That's your only option.

Because

If you don't, this is what's going to

They've got a

Ultimately I'm protecting

Anything further you want me to say, Ms. Dustin,

about the 3553(a) factors?

MS. DUSTIN:

No, Your Honor.

THE COURT:

You have a right, as I've indicated

Thank you.

66a

Appendix I

to Mr. Carrizales, to appeal.

very capable lawyer, as that Mr. Wagner is, and if grounds

to appeal appear to exist, by all means within 14 days file

a notice of appeal.

desires to continue to represent you, he'll do so without

cost to yourself.

to yourself.

another attorney, different attorney, we'll make that

request known to either me or to the Court of Appeals.

you understand all that?

Talk to Mr. Schuman, your

If you decide to have him and he

The record will be prepared without cost

And if either you or he wants you to have

DEFENDANT WATTERS:

THE COURT:

Yes, Your Honor.

Within 14 days, 14 days.

It's a very

short timeframe.

haven't filed a notice of appeal, you will lose any and all

right you might otherwise have to challenge what I've done

today, either by way of direct appeal, post-conviction

relief, or habeas corpus.

After that, you will lose -- if you

Do you understand that?

DEFENDANT WATTERS:

THE COURT:

Yes, Your Honor.

I want to repeat that to you too,

Mr. Carrizales; 14 days, otherwise you lose the opportunity

to challenge whatever.

Does any party have any objection to any part of

these proceedings not previously made?

MR. WAGNER:

No, Your Honor.

MR. SCHUMAN:

Your Honor, few remarks if I may.

67a

Appendix I

I have a few requests if I may.

THE COURT:

MR. SCHUMAN:

My client wishes to have the no contact order

Sure.

Thank you, Your Honor.

with Mr. Carrizales removed; credit for 13 months in

custody on this violation, which I think is appropriate.

He requested 14-months credit for the time served on the

earlier violation.

supervised release previously.

He notes he had three years of

I object, for the record, to the sentence imposed

for purpose of appeal.

My client also notes that his proper last name

now is -- I hope I say it correctly, Jaimez J-A-I-M-E-Z.

His name was legally changed in State Court in Ohio some

years ago.

THE COURT:

I think -- you know, I think that had

occurred before, but it wasn't brought to my attention.

will note that.

making any recommendation as to what the Bureau of Prisons

should do in terms of his computation for time served.

That's entirely within the province of the Bureau of

Prisons.

Let me only say I'm going to refrain from

Correct, Ms. Sterling?

MS. DUSTIN:

Your Honor, I believe he would not

get credit because he was already serving time on The State

68a

Appendix I

offense.

credit for that time.

days because they gave him credit for the 180 days.

I think he was being held with -- he already got

THE COURT:

He did not have to serve the 180

All I'm saying -- I don't know, it's

really out of my hands.

computation.

Mr. Carrizales and he, shall oversee what the Bureau of

Prisons will be attentive and accurately calculate the time

served credit as to the sentence that I've imposed.

that, I can't -- I have no authority to -- Ms. Sterling,

you and I have had a couple of occasions where it was made

very clear to me that that computation, whether a defendant

believes it's correct or not, cannot come back to me to

secure any kind of -- is that right, Ms. Sterling?

I can sit and try to do a

I will simply say that I expect that, both

MS. STERLING:

Beyond

That is correct, Your Honor.

think there's a distinction here, although it's one without

a difference, and that is this; if a defendant is being

held solely on this Court's violation order, then he would

get credit.

gentlemen, because they received credit for six months on

The State case, they would not get credit for.

The Court is supposed to accomplish that is by imposing a

higher sentence than what you normally would have, but you

can't do that here because you sentenced them at the

statutory maximum.

However, at least six months for these

And the way

So I think for the record that explains

69a

Appendix I

that.

With regard to the protection order issue that

Mr. Schuman raised between the two; again, that is a matter

that will be addressed by the BOP relative to their

security concerns.

THE COURT:

Right.

I do hope both of you

gentlemen are up the road rather than some distant isolated

federal facility that, from a practical standpoint, will

make it difficult, if not impossible, to bring your family

to have a face-to-face visitation or contact.

candidly, with just about everybody who comes before me,

confining them as close to home as possible is an important

component ultimately of reentry and rehabilitation.

contact is and remains, in my view, important.

But, once

again, Mr. Schuman, that's all that I can do.

I'll take

note of that.

to accurately and attentively calculate the proper credit

for time served.

I think,

Family

I'll certainly expect the Bureau of Prisons

MR. SCHUMAN:

My only last comment is my client indicates that

The Court previously directed the Marshals to correct his

last name to Jaimez.

leave it at that.

THE COURT:

I understand, Your Honor.

Apparently it didn't happen.

I'll

I will so instruct the Marshals.

May

I suggest that you go on upstairs and get in touch with

70a

Appendix I

Alex and both, formally and informally, make that request.

I also suggest that you send a copy of that -- CC that

request to Pete Elliot, who's the U.S. Marshal.

suggest, follow up on it.

MR. SCHUMAN:

THE COURT:

Thank you, Your Honor.

In that respect, a phone call from me

to anybody needing my help, I'm glad to do that.

am.

last -- the last supervised release proceedings.

I really

I now remember I think that had occurred before the

MR. SCHUMAN:

THE COURT:

And I also

that.

I think so, Your Honor.

And I apologize, I had forgotten

Mr. Watters is still -- Mr. Jaimez.

MR. SCHUMAN:

THE COURT:

Mr. Timothy Watters.

Jaimez.

-- is still being considered to be

So that's why --

MR. SCHUMAN:

Thank you, Your Honor.

MS. DUSTIN:

Your Honor, I think we were having a

discussion, and I don't think Mr. Schuman answered the

Bostic question.

THE COURT:

I'm sorry, I can't hear you.

MS. DUSTIN:

I don't think Mr. Schuman answered

the Bostic question.

THE COURT:

previously made, Mr. Schuman?

Okay.

MR. SCHUMAN:

Any other objections not

No, Your Honor.

71a

Appendix I

MS. STERLING:

MR. WAGNER:

No, Your Honor.

THE COURT:

Okay.

That will conclude this

proceeding.

Mr. Wagner, once again?

COURTROOM DEPUTY:

Your Honor, there's a pending

motion to be addressed on the record about Mr. Watters.

THE COURT:

You have some motions, Mr. Schuman,

previously made that are going to be withdrawn; is that

correct?

MR. SCHUMAN:

THE COURT:

Correct.

Any further pending matters for the

government?

MS. DUSTIN:

Nothing, Your Honor.

THE COURT:

Okay.

Mr. Schuman, anything further

for defendant?

MR. SCHUMAN:

THE COURT:

Mr. Wagner?

MR. WAGNER:

No, thank you, Your Honor, very

THE COURT:

Thank you.

No, thank you, Your Honor.

much.

That will conclude this

proceeding.

- - -

72a

Appendix I

C E R T I F I C A T E

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

s:/Angela D. Nixon

---------------------------

Angela D. Nixon, RMR, CRR

March 27, 2023

----------Date

73a

Appendix J

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74a

Appendix J

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75a

Appendix K

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

-vsTORIANO A. LEAKS, JR.,

Defendant,

)

JUDGE PATRICIA A. GAUGHAN

CASE NO.: 1:19CR283

ORDER

A Supervised Release Revocation Hearing was held on June 29, 2023. Assistant U. S.

Attorney Scott Zarzycki was present on behalf of the Government. Defendant Toriano A. Leaks, Jr.

was present and represented by his counsel Justin Roberts. Probation Officer Rob Capuano was

present on behalf of the Probation Department. The defendant waived his right to an evidentiary

hearing and admitted to violating the conditions of his supervised release, to wit: new law

violations, failure to report, failure to attend mental health treatment, and failure to work towards

his GED. The Court finds the most serious violation to be a Grade B.

This Court hereby sentences the defendant, Toriano A. Leaks, Jr., to the custody of the

Bureau of Prisons for a period of 12 months to run consecutively to his two state sentences in case

numbers CR-21-666036 -A and CR-23-678409-A. The Court does not order further supervision.

IT IS SO ORDERED.

Date: June 29, 2023

/s/ Patricia A. Gaugha

Patricia A. Gaughan

United States District Court

76a

Appendix L1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

vs.

TORIANO A. LEAKS, JR.,

Defendant.

)

Case No. 1:19-cr-283-PAG

Cleveland, Ohio

Thursday, June 29, 2023

11:08 a.m., Courtroom 19B

VIOLATION HEARING

REPORTER'S TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE PATRICIA A. GAUGHAN,

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff:

OFFICE OF THE U.S. ATTORNEY - CLEVELAND

BY: SCOTT C. ZARZYCKI, AUSA

801 West Superior Avenue, Suite 400

Cleveland, OH 44113

(216) 622-3971

(Appearances continued on Page 2)

COURT REPORTER:

Heather K. Newman, RMR, CRR

U.S. District Court, Northern District of Ohio

801 West Superior Avenue, Court Reporters 7-189

Cleveland, OH 44113

(216) 357-7035 or heather_newman@ohnd.uscourts.gov

Proceedings reported by machine shorthand; transcript

produced by computer-aided transcription.

77a

Appendix L2

APPEARANCES CONTINUED:

For the Defendant:

OFFICE OF THE FEDERAL PUBLIC DEFENDER - CLEVELAND

BY: JUSTIN J. ROBERTS, ESQ.

1660 West Second Street

750 Skylight Office Tower

Cleveland, OH 44113

(216) 522-4856

Also present:

ROBERT CAPUANO

U.S. Pretrial Services and Probation Office

78a

Appendix L3

CLEVELAND, OHIO; THURSDAY, JUNE 29, 2023; 11:08 A.M.

--oOo--

P R O C E E D I N G S

COURTROOM DEPUTY:

THE COURT:

All rise.

Please be seated.

Mr. Leaks, you may approach the podium with counsel.

We're here in the matter of United States of America

vs. Toriano Leaks, Jr., Case Number 19-cr-283.

Present in court is Mr. Leaks; is that correct, sir?

THE DEFENDANT:

THE COURT:

Yes, ma'am.

Represented by his attorney,

Mr. Justin Roberts; on behalf of the government, Mr. Scott

Zarzycki; on behalf of Probation, Mr. Robert Capuano

standing in for DeMario Reynolds.

PROBATION OFFICER:

THE COURT:

Good morning, Your Honor.

Good morning.

Sir, we're here this morning for purposes of a

supervised release violation hearing.

violation report dated February 13th of this year and a

supplemental information report dated June 15th, 2023.

I should add also, supplemental information report of

June 5th.

I have before me a

And

Mr. Roberts, I'm going to assume you are in receipt of

all three of these reports.

MR. ROBERTS:

Yes, Your Honor.

79a

Appendix L4

THE COURT:

MR. ZARZYCKI:

THE COURT:

Same question, Mr. Zarzycki.

Yes, Your Honor.

All right.

According to these

reports, there are six alleged violations.

The first is a new law violation.

On May 11th of this year Mr. Leaks pled guilty to one

count of robbery and received a sentence of 4 to 6 years.

The second is a new law violation.

Mr. Capuano, please correct me if I'm wrong, but this

matter has not been resolved and there is an outstanding

warrant.

Am I correct?

PROBATION OFFICER:

That is correct,

Your Honor.

THE COURT:

All right.

It is generally my

practice not to consider new law violations that have not

been resolved, so I am not going to consider alleged

Violation Number 2.

Number 3, failure to report.

Mr. Leaks failed to report on May 18th, May 31st, and

June 8th of 2022.

The fourth is failure to attend mental health

treatment.

He failed to attend group session on May 13th,

May 24th, and June 1st of 2022.

Fifth, failure to work towards GED.

80a

Appendix L5

He failed to work toward getting the GED -- GED since

commencing supervision.

And finally, a new law violation.

On May 11th, 2023, Mr. Leaks pled guilty to having a

weapon while under disability with a 3-year sentence to run

concurrent with the new law violation that I've already

discussed, Violation Number 1.

Mr. Roberts, on behalf of your client, do you wish for

this Court to hear testimony regarding these alleged

violations, or do you waive the taking of testimony and

admit?

MR. ROBERTS:

Your Honor, in light of the fact

that the Court is not considering Violation Number 2 at this

time, we waive the testimony and do admit to the other

violations.

THE COURT:

attorney just said to me?

Sir, do you understand what your

THE DEFENDANT:

THE COURT:

Yes, ma'am.

And do you, in fact, admit to

Violations 1, 3, 4, 5, and 6?

THE DEFENDANT:

THE COURT:

Yes, ma'am.

Sir, based upon your admission, I

do in fact find you to be in violation of supervised

release.

I find that the most serious is a Grade B violation,

81a

Appendix L6

and with a Criminal History Category of III you are looking

at an advisory sentencing guideline range of 8 to 14 months.

On the issue of sentencing, Mr. Roberts, should I turn

to you first or your client?

MR. ROBERTS:

Your Honor, just briefly, we

understand because of the nature of the violation that the

Court is required by statute to impose a term of

imprisonment.

imprisonment concurrent to the now 4 to 6 years that

Mr. Leaks received.

for that case and, actually, when you look at the purposes

of sentencing, at least on a supervised release violation,

Title 18 United States Code § 3583(a) specifically omits the

Court's consideration of Title 18 United States Code

3553(a)(2) which otherwise would be present in a regular

sentencing, that being the seriousness of the offense,

respect for law and punishment.

from a supervised release sentencing and have been addressed

with the 4 to 6-year sentence that he received for the

conduct in the new law violation.

We would ask the Court to run any term of

He obviously accepted responsibility

All of those are omitted

We would ask the Court to consider that he's going to

be on 18 months' mandatory post-release control also on that

case and will continue to be supervised by court officials

as he seeks to re-enter the community and rehabilitate

himself.

82a

Appendix L7

Thank you, Your Honor.

THE COURT:

Mr. Leaks, do you have anything to

say, sir?

THE DEFENDANT:

Um. . . I just would like to

say that I learned my lesson and I want to make sure that I

influence my younger family members that look up to me and

think, what are we doing or whatever I was contributing to

was cool, that this ain't the way to go.

THE COURT:

MR. ZARZYCKI:

Mr. Zarzycki.

Thank you, Your Honor.

It's the government's position that a consecutive

guideline sentence is appropriate for Mr. Leaks, under

7B1.3(f), that it was to be served consecutively to a

sentence of imprisonment.

Your Honor, this involved a -- as the Court's aware

from having his original case, involved the Possession of a

Machine Gun and next to this machine gun -- which

was functional -- there were three magazines, 15 rounds,

20 rounds and 30 rounds.

sentenced to 4 years for the criminal offenses that he

committed.

because of the violations of this Court's supervision, and

that supervision was based on the prior offense of -- or his

conviction of having this dangerous machine gun.

So his violations -- like, he was

I ask the Court to impose a consecutive sentence

Now, one of his offenses to which he's been convicted

83a

Appendix L8

in state court involves another firearm as recently as

February of this year.

Another offense is a robbery that is an offense of

violence as well as his failure to adhere to any of the --

or many of the requirements of his supervision.

I believe that a consecutive sentence would be

appropriate for those violations.

THE COURT:

PROBATION OFFICER:

Mr. Capuano.

Hello, Your Honor.

Your Honor, U.S. Probation Office would just like to

add that, unfortunately, this is a very unfortunate

circumstance for Mr. Leaks.

He has a lot of future ahead of him and these are some very

serious charges that he has in front of him violations-wise.

In regard to recommendations, Your Honor, we would

also recommend that a term of imprisonment is imposed and

that it be served consecutive to his state sentence as well.

Mr. Leaks is a very young man.

Originally we were recommending a term of supervised

release to follow as well.

sentences, he does have mandatory post-release control with

the State of Ohio with the Adult Parole Authority and we

would not be opposed to -- if he does not have supervised

release through us, Your Honor, following the sentence.

However, based upon his state

Thank you.

THE COURT:

Mr. Roberts, anything else?

84a

Appendix L9

MR. ROBERTS:

No, Your Honor, other than to --

just to reiterate, I know there's been reference to the

seriousness of the offenses, both the original offense and

the new offense, and I would just reiterate that he's been

sentenced and is serving his time for those.

Thank you, Your Honor.

THE COURT:

And yet I agree with all of the

statements made by Mr. Zarzycki.

To be on supervision and

have five violations, two of which are new law violations,

both involving firearms, and the original offense here

involved a machine gun.

Mr. Leaks for violating supervision and -- and. . . that is

not justice.

Concurrent time does not punish

Therefore, it is the judgment of this Court that you

be committed to the custody of the Bureau of Prisons to be

imprisoned for a term of 12 months consecutive to the time

being served in the two state cases.

There will be no further supervision.

Mr. Leaks, I wish you the best, and I certainly hope

you turn your life around because you are a very young man,

as Mr. Capuano pointed out.

Boy, this is not the road to go down.

be in and out of prisons the rest of your life.

I see it with one defendant after another.

I don't want that for you.

You're going to

I see it.

I hope this is your

85a

Appendix L10

wake-up call.

Good luck.

THE DEFENDANT:

MR. ROBERTS:

Yes, ma'am.

Your Honor, just on Mr. Leaks'

behalf, if --

THE COURT:

One moment, sir.

MR. ROBERTS:

We would just object to the

consideration of punishment as it relates to the sentence.

I understand all of the other factors the Court may have

considered, but as it relates to considering punishment from

the new offense, we would object in case he wants to perfect

any kind of appeal on that issue.

Thank you.

THE COURT:

All righty.

Sir, you certainly have the right to appeal, if you so

choose.

THE DEFENDANT:

Okay.

MR. ZARZYCKI:

Are we adjourned, Your Honor?

THE COURT:

Oh, we're adjourned.

I'm sorry.

(Proceedings adjourned at 11:19 a.m.)

C E R T I F I C A T E

I certify that the foregoing is a correct transcript

of the record of proceedings in the above-entitled matter

prepared from my stenotype notes.

/s/ Heather K. Newman

HEATHER K. NEWMAN, RMR, CRR

8-16-2023

DATE

86a

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.