The justices heard oral arguments in Esteras v. U.S., brought by three offenders sentenced to prison for supervised release infractions, who say sentences for violations of supervised release — a term of post-prison monitoring, akin to parole — cannot be imposed as a punishment.
When a defendant is sentenced for the original crime, courts are instructed to consider the so-called 3553a factors, which include the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment.
Yet those factors are omitted from the statute outlining sentencing considerations for supervised release violations.
The petitioners — Edgardo Esteras, Timothy Jaimez and Toriano Leaks — were each sent back to prison for breaking supervised release rules, based in part on district court rulings that cited punishment, among other factors, as justifying prison terms following the revocation of supervised release.
Adding to a deep circuit split, the Sixth Circuit affirmed, joining four other appeals courts in finding that judges can take into account all the 3553a factors in sentences for violating supervised release.
An attorney for the petitioners, Christian Grostic of the office of the Federal Public Defender for the Northern District of Ohio, told the justices that Congress clearly precluded consideration of Section 3553a's so-called retribution factors when judges sentence offenders for supervised release violations, given that such sentences aren't meant to be punitive.
Grostic argued that supervised release was created for different purposes than a prison sentence that precedes it, namely for rehabilitation, protection of the public and the management of an offender's reentry into society.
"So the purposes there relate to other things. You're not imposing supervised release to punish the person for the crime that they committed, that's the incarcerative term that you've already imposed," he said.
Punishment, by contrast, is already satisfied by the original sentence for the underlying offense.
"Under the Sixth Circuit's rule, district courts can treat a supervised release revocation the same as an initial sentencing, where they can punish the offender for what's happened before, no matter what has changed in the meantime," Grostic said.
The Supreme Court seemed to be divided on the feasibility of the petitioners' preferred outcome. Multiple justices brought up the question of how judges would exclude Section 3553a's retributive factors from a supervised release sentencing, given that those considerations can overlap with the factors specifically listed for consideration by congress.
Under the petitioners' reading, when handing down sentences for supervised release violations, judges may consider, for example, the nature and circumstances of the offense, the need to protect the public, and rehabilitative issues, but not the retributive 3553a factor of the need for the sentence to reflect the seriousness of the offense.
"I just don't see the difference between the nature and circumstances of the offense and the severity of the offense," Justice Samuel Alito said.
Justice Neil Gorsuch seemed incredulous about how a prison term in any context would not constitute retribution.
"In the real world, an individual comes before a judge having violated a term of supervised release and is remanded to prison. In what world does he think he's not being punished?" he said.
"At the same time, what the district court is instructed to do is not to say, 'You have done something wrong here, and because of that wrongness, I'm going to measure how wrong it is, and I'm going to punish you as a result,'" Grostic said.
Justice Gorsuch also wondered whether a negative implication could be drawn from congress' omission of the retributive sentencing factors, i.e., just because those considerations were left out of what judges must consider at supervised release sentencings, does that mean they are expressly prohibited from consideration?
Grostic later argued that there isn't a "catchall provision" in the supervised release sentencing statute saying that judges must consider the listed factors, and other ones to the extent they apply.
"Nothing like that," he said.
Justice Sonia Sotomayor said nothing is stopping a court from looking at any evidence in the case, and Grostic agreed that his position is that such evidence cannot be used for certain purposes.
"Courts do this all the time with hearsay," Justice Sotomayor said. "We tell courts you can't use hearsay for the purpose of the truth of the matter, but you could use it for ... a lot of other reasons, correct?"
"Correct," Grostic replied.
Masha Hansford of the Solicitor General's Office told the high court that the statute governing what factors must be considered by a judge conducting a supervised release sentencing doesn't prohibit consideration of other factors, as Esteras and the others contend.
"I think the court should take cognizance of the fact that this would be a really bizarre thing for congress to do in this way," Hansford said.
"Why couldn't you base a revocation decision on what happened that is leading to revocation and not the seriousness of the initial offense?" Justice Ketanji Brown Jackson asked.
Hansford posited a scenario where an offender originally convicted of murder or domestic assault with a weapon has violated the terms of supervised release by carrying a weapon.
"I think that a court would perceive that violation very differently than if the underlying offense was fraud," she said. "So the severity of the underlying offense can provide critical context in assessing the violation and in informing a court's decision about what to do about [it]."
The government also contends that if congress had wanted to bar consideration of unlisted factors present in the Section 3553a context, it could have said that courts may only consider the factors spelled out in the statute governing supervised release sentencing.
"I think Congress had the ability to act with a lighter hand by requiring the things it thought were most important or with a heavier hand by forbidding all others," Hansford said. "And I think the text here plainly does the first, particularly when you contrast it to the various provisions throughout to do what the heavier handed approach would do."
Prosecutors also say the nonretributive considerations are too intertwined with unlisted 3553a factors. Separating the listed factor of affording adequate deterrence from the unlisted factor of promoting respect for the law raises feasibility problems, according to the government.
Justice Sotomayor took issue with that stance.
"I'm having a little problem with this workability argument because there's four circuits, one of them pretty large — the Ninth — but the Fourth, the Fifth, the Ninth ... and the Tenth, all of whom have the rule you say is unworkable, they seem to be functioning fine," she said.
Hansford said with respect to the retributive factor of seriousness of the offense, for instance, she doesn't think courts can ever really separate it, or the promotion of respect for the law factor, when assessing the need to provide adequate deterrence for criminal conduct.
Justice Jackson said ordinarily, when Congress omits something, one would think lawmakers are taking something off the table.
"So what we have to do is understand the circumstances under which Congress would indicate you have permission to consider something by removing it from the list," she said.
The justices' ruling could affect thousands of cases each year, the petitioners say, pointing to research by the U.S. Sentencing Commission, which found 108,000 federal supervision violations from 2013 to 2017, with 86% of those resulting in a new prison term.
The Solicitor General's Office initially declined to file a response to Esteras' petition, but the justices requested that the government do so anyway.
The government is represented by Sarah Harris and Masha Hansford of the Solicitor General's Office, and Mahogane Reed of the Department of Justice's Criminal Division.
Esteras, Jaimez and Leaks are represented by Stephen Newman, Christian Grostic, Lori Riga, Jeffrey Lazarus, Catherine Adinaro Shusky, Matthew Gay, Calland Ferraro and Aleesha Kazi of the Federal Public Defender's Office for the Northern District of Ohio, and Joseph Medici and Kevin Schad of the Federal Public Defender's Office for the Southern District of Ohio.
The case is Esteras et al. v U.S., case number 23-7483, in the U.S. Supreme Court.
--Additional reporting by Brian Dowling. Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
