United States of America v. Edgardo Esteras

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,
v.
EDGARDO ESTERAS,
Defendant-Appellant.
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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.
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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.
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No. 23-3422 United States v. Esteras Page 2
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ORDER
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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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No. 23-3422 United States v. Esteras Page 3
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DISSENT
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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.

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No. 23-3422 United States v. Esteras Page 4
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DISSENT
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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.

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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
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Kelly L. Stephens, Clerk

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