United States of America v. Benjamin John Higgerson

United States Court of Appeals
For the Eighth Circuit
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No. 24-3109
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Benjamin John Higgerson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: June 9, 2025
Filed: February 5, 2026
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Before LOKEN, ERICKSON, and KOBES, Circuit Judges.
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LOKEN, Circuit Judge.
Benjamin Higgerson appeals the sentence imposed by the district court1 after
it revoked his supervised release for the third time. The issue presented is whether
the sentence is substantively unreasonable because the district court “weighed heavily
1The Honorable Stephanie M. Rose, Chief Judge, United States District Court
for the Southern District of Iowa.

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an improper factor in arriving at its sentence.” A sentence following revocation of
supervised release is substantively unreasonable if the district court “fails to consider
a relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.” United States v.
DeMarrias, 895 F.3d 570, 573-74 (8th Cir. 2018) (quotation omitted).
Higgerson argues the district court’s comments at the revocation hearing show
that its sentence was imposed “to promote respect for the law,” a sentencing factor
enumerated in 18 U.S.C. § 3553(a)(2)(A) that is excluded from consideration in
determining the length of a supervised release revocation sentence in 18 U.S.C.
§ 3583(e). While this appeal was pending, the Supreme Court issued a controlling
decision governing this issue, Esteras v. United States, 145 S. Ct. 2031 (2025).
Applying the Court’s mandate and guidance from Esteras, as we did in United States
v. Jokhoo, 141 F.4th 967, 970 (8th Cir. 2025), we affirm.
I. Background
In April 2017, Higgerson was sentenced to 78 months imprisonment followed
by ten years supervised release after he pleaded guilty to possession of child
pornography. He began serving supervised release in December 2021. When he
refused to work after the probation officer denied his request to work at a restaurant
that employed minors, failed to make required restitution payments, and skipped a sex
offender treatment session, the district court revoked supervised release in August
2022 and sentenced Higgerson to nine months imprisonment and nine years of
supervised release. He began serving the second term of supervised release in May
2023. When he did not find employment or complete required community service
hours, stopped making restitution payments, and missed multiple treatment sessions,
the district court revoked supervised release in November 2023 and imposed a
revocation sentence of nine months imprisonment and nine years supervised release.
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Higgerson began his third term in August 2024. His mother did not permit him
to live with her, as she had during prior periods of supervised release. The probation
officer instructed Higgerson to report to a local homeless shelter. He did not check
in at the shelter and did not report to the Probation Office, two Grade C violations
of the terms of his supervised release. See USSG § 7B1.1. The district court issued
a warrant for his arrest and this third revocation proceeding commenced.
Higgerson was in Criminal History Category I at the time of his original
sentencing, so his range of imprisonment for these supervised release violations under
the applicable guidelines policy statement was 3 to 9 months. See USSG §§ 4A1.1,
7B1.4(a). At the revocation hearing on October 16, 2024, the government requested
a sentence above the recommended range due to Higgerson’s repeated failure to
comply with the terms of supervised release:
[H]e has a negative attitude with supervision, and he’s simply refusing
to comply with even the simplest of supervision rules like reporting to
the probation office. . . . [T]his court has revoked him twice before,
given him nine months. That has not given him the wake-up call that he
needs as he comes out . . . . [T]he day he is released, he determines he
is not complying with supervised release and does not show up for his
first visit to reinitiate supervised release. . . . So . . . we are asking that
his supervision be revoked to [above] the guideline range because the
top of the guidelines is nine months, and, obviously, that is not adequate
for this defendant. We would also ask that the defendant be placed in
the RRC to follow. . . . Maybe this will stabilize him . . . help him get a
job so that he can then pay the restitution that is still owed.
In response, counsel for Higgerson requested a sentence on the low end of the
range due to his lack of housing during this term of supervised release:
As your honor noted, this was the first time he didn’t have a place
to land when he came out with his mother, and so for that reason, I think
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it is different circumstances than before, and so going above the
guideline range would be inappropriate . . . . In fact, I think on the lower
end of the guideline range would be appropriate for Mr. Higgerson. The
imprisonment is all that is necessary as a punishment. We respectfully
disagree and don’t believe the RRC or any other facility is necessary
when he comes out. . . . [A]dding more rules is not going to fix the
problem.
Higgerson declined the district court’s offer of an opportunity to speak. The court
then explained its revocation ruling in detail. We quote the most relevant comments:
I have considered all of the factors under 3553(a). I have
considered all the advisory guidelines and the applicable commentaries,
including 3F1.3 . . . .
As noted in prior hearings, working is a significant part of
rehabilitation. . . . Defendants who have child pornography issues, as
this defendant does, get into more trouble when they have unoccupied
time . . . and working a job or community service type of arrangement
limits those temptations . . . .
[A]s I’ve said at prior hearings, Defendant will control how much
community service he does. . . . It could be 40 hours every week until we
finish supervision, which right now is nine more years if he continues
to refuse to work. . . .
So that’s talking about supervision once we get past the
revocation itself. At this point, I have twice revoked the defendant. I
have given him nine months of imprisonment each time. He has
immediately reoffended rather vigorously both times. He has refused to
comply with even the most simple of instructions. He won’t go to sex
offender treatment, he won’t get a job, he won’t pay his restitution.
He is a 43-year-old man who is in good health. He has no
substance abuse history. He has no particularly serious mental health
issues. . . . He has a college degree. He is somebody who is capable of
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complying [and] working [and] supporting himself, and he has opted not
to do those things for pretty much the entirety of his life.
I don’t know what to do with him other than continue to
incrementally increase the punishments that he’s facing for
noncompliance and continue to set rules that hopefully encourage him
towards doing what he needs to do, which is getting a job, living
independently, and complying with his treatment obligations.
So having considered all of those matters, I again revoke
Defendant’s supervised release. I impose 18 months of imprisonment
to be followed by 9 years of supervised release.
As far as the terms and conditions of supervision go, Defendant
will spend the first 180 days of his term of supervised release at the
residential reentry center or until the probation office determines that he
can be released from that program. He’ll have work privileges, provided
he is working.
After explaining the continuing other conditions of supervised release, the
district court advised Higgerson of his right to appeal the sentence, and counsel stated
that Higgerson “has no requests or recommendations regarding the BOP.” The court
then asked: “Anything else . . . Mr. Breedlove?” Defense counsel replied, “No, Your
Honor.”
On appeal, Higgerson argues his sentence is substantively unreasonable
because the district court “gave considerable weight to an improper sentencing
factor,” 18 U.S.C. § 3553(a)(2)(A). Appellant’s Brief explains that the court’s
comment that Higgerson’s revocation punishment “is going to be continuingly
incrementally increased until [he] complies [with the conditions of his supervised
release] appears to be more akin to a desire of the district court to promote respect for
the law,” a factor “that is omitted from being considered in a sentencing revocation
hearing by 18 USC § 3583(e).”
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The appeal was submitted without oral argument on June 9, 2025. On January
14, 2026, the government filed a Motion To Dismiss Appeal, advising for the first
time that Higgerson commenced a fourth term of supervised release following his
release by the Bureau of Prisons from the term of revocation imprisonment on appeal,
and that his challenge to the third custodial sentence is therefore moot. The district
court docket entries reveal that a Summons for Offender Under Supervision was
issued by the court on December 23, 2025 and returned executed on January 6, 2026.
Counsel representing Higgerson on this appeal was again appointed on January 9, a
final revocation hearing was scheduled, and a motion for a fourth revocation of
supervised release was filed on January 12. The government’s Motion To Dismiss
Appeal states that the “[n]ew violation proceedings are pending.” Thus, the issue
raised on appeal may well affect any revocation sentence imposed in the pending
fourth revocation proceedings. We therefore deny the Motion To Dismiss Appeal.
II. Discussion
A. In initially sentencing a defendant, 18 U.S.C. § 3553(a) enumerates several
factors the district court “shall consider.” One is 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,” 18 U.S.C. § 3553(a)(2)(A). When imposing
a revocation sentence, § 3583(c) and (e) instruct the district court to consider the
same § 3553(a) factors with two exceptions -- it omits § 3553(a)(2)(A) and
§ 3553(a)(3) (the “kinds of sentences available”) from the § 3553(a) sentencing
factors the court “shall consider.”
Due to textual ambiguity in § 3583(e), which governs revocation sentencing,
a circuit split arose. Some circuits permitted but did not require district courts to
consider § 3553(a)(2)(A) when revoking supervised release. Esteras, 145 S. Ct. at
2038 n.1. Others prohibited district courts from considering it altogether. Id. And
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others merely prohibited district courts from giving § 3553(a)(2)(A) “dominant”
weight. Id. (quotation omitted).
In United States v. Martin, we noted this circuit split but held the district court
did not commit procedural error when it recited all the § 3553(a) factors, including
§ 3553(a)(2)(A), but “focused primarily on [defendant’s] history and characteristics
rather than the retribution for the offenses.” 757 F.3d 776, 780 & n.2 (8th Cir. 2014).
In United States v. Hall, where the district court varied upward “in part based on the
need to promote respect for the law,” we noted that “the split may be ending” and
concluded the district court did not abuse its discretion:
The district court extensively discussed the nature and circumstances of
the offense as compared to the defendant’s criminal history, both of
which are permissible factors for revocation sentences. Then, it
mentioned the need . . . to promote respect for the law as [an] additional
reason[] supporting its sentence. Consequently, this is an instance of
using an excluded factor only as an insignificant justification. We see
no substantive error in giving insignificant weight to the excluded
factor.
931 F.3d 694, 697 (8th Cir. 2019) (emphasis added), relying on United States v.
Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc).
The Supreme Court granted certiorari in Esteras to resolve this circuit conflict.
In Esteras, the appellant was arrested on domestic violence charges while serving a
term of supervised release. 145 S. Ct. at 2037. At his revocation hearing, the district
court imposed a sentence twice as high as the upper range of the applicable
guidelines, acknowledging that “part of its decision certainly [was] the need for the
sentence imposed, to promote respect for the law.” Id. (quotation omitted). The
Supreme Court reversed this revocation sentence, holding that Congress’s omission
of § 3553(a)(2)(A) from the list of factors in § 3583(e) was intentional, and therefore
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the district court could not consider “respect for the law” when determining Esteras’s
revocation sentence. Id. at 2040.
The Court began its majority opinion in Esteras by noting that § 3553(a)(2)
“captures [in subsections (A) to (D)] the traditional heartland of criminal sentencing.
. . . These four considerations -- retribution, deterrence, incapacitation, and
rehabilitation -- are the four purposes of sentencing generally.” Id. at 2038 (quotation
omitted). When determining whether to revoke a defendant’s supervised release,
§ 3583(e) includes in the list of factors to consider subsections (B), (C), and (D). But
it omits from consideration § 3553(a)(2)(A) -- the need for the sentence to reflect the
seriousness of the offense and to provide just punishment for the offense. “In the
context of a revocation hearing,” the Court explained, “the ‘offense’ is the underlying
crime of conviction, not the violation of the supervised-release conditions.” Id. at
2040.2 In “our current criminal justice system,” supervised release “‘is not a
punishment in lieu of incarceration’ . . . . So when a defendant violates the conditions
of his supervised release, it makes sense that a court must consider the forward-
looking ends of sentencing (deterrence, incapacitation, and rehabilitation), but may
not consider the backward-looking purpose of retribution.” Id. at 2041 (emphasis in
original, quotations omitted). The Court concluded:
Text, structure, and precedent all point in the same direction:
Congress’s decision to exclude § 3553(a)(2)(A) from § 3583(e)’s list of
sentencing factors means that district courts cannot consider
§ 3553(a)(2)(A) when deciding whether to revoke supervised release.
2This is consistent with our prior decisions. “It is well-settled in this circuit
that a court imposing a revocation sentence is not cabined by the supervised release
term originally imposed, but only by the term statutorily authorized for the offense
of conviction[.]” United States v. Dailey, 113 F.4th 850, 857 (8th Cir. 2024).
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Id. at 2042. Relevant to the appeal in this case, the Court went on to briefly comment
on the government’s concern that it will be difficult for appellate courts to determine
whether a district court has impermissibly relied on § 3553(a)(2)(A):
Much will turn on whether the defendant objects. If the defendant does
not make the district court aware that it may be impermissibly relying on
§ 3553(a)(2)(A), then the defendant’s appeal will be governed by plain-
error review. See Fed. Rule Crim. Proc. 52(b). In that event, the district
court’s order . . . will be affirmed unless it is “clear” or “obvious” that
the district court actually relied on § 3553(a)(2)(A) -- because it did so
expressly or by unmistakable implication.
Id. at 2045, citing United States v. Olano, 507 U.S. 725, 734 (1993). In Jokhoo,
applying this guidance, we affirmed the district court’s decision to impose a
revocation sentence of 12 months imprisonment. We concluded that the defendant:
failed to carry his burden to show that the court’s mistake [a “passing
reference” to retribution] affected his substantial rights. . . . [T]he
“primary driver” of his sentence was the district court’s belief that he
had a “problem following the rules.” This was a separate basis for the
sentence and an appropriate one; the district court was free to weigh the
number of Jokhoo’s supervised release violations against him for
purposes other than exacting retribution.
141 F.4th at 970 (citation omitted). In other words, we interpreted the plain error
standard for review of this issue under Esteras as virtually indistinguishable from our
review of an “insignificant” additional justification in our pre-Esteras decision in
Hall. Cf. United States v. Johnson, 827 F.3d 740, 745 (8th Cir. 2016).
B. In this case, although the briefs for both parties improperly ignore the issue,
see Fed. R. App. P. 28(a)(8)(B), it is obvious that Higgerson’s contention that his
sentence is substantively unreasonable because the district court “gave considerable
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weight” to an improper sentencing factor, 18 U.S.C. § 3553(a)(2)(A), is subject to
plain error review. Defense counsel did not raise the issue in the district court and
expressly answered “No, Your Honor,” when the court asked if he had “anything
further” after the court’s lengthy explanation of its sentencing decision. In United
States v. Dailey, we applied plain error review when the court declined to follow the
parties’ joint recommendation and imposed a greater imprisonment sentence:
“Neither party responded when the court asked for ‘anything additional.’ No
objections were raised.” 113 F.4th 850, 854 (8th Cir. 2024). Indeed, defense counsel
here went even further, stating that “[the imprisonment the court was imposing] is all
that is necessary as a punishment.” This gave the court no reason to comment on
whether it was actually relying on the retributive purpose of 18 U.S.C.
§ 3553(a)(2)(A).3
Here, there is no record support for a contention that the district court
committed plain error under Esteras and Hall. At the sentencing hearing, the court
did not mention 18 U.S.C. § 3553(a)(2)(A) or use the term “promote respect for the
law.” Thus, defense counsel’s assertion on appeal that the court’s comments “appear
to be more akin to a desire of the district court to promote respect for the law” is
worse than unfounded speculation or inference; it is outright fabrication. The district
court did state at the outset of its explanation that it considered “all of the factors
under § 3553(a).” That is required at an original sentencing. In Martin, which was
governing Eighth Circuit precedent when the court imposed this revocation sentence
3In United States v. Deatherage, where we held that a general objection at
sentencing did not preserve the issue whether the court adequately explained its
specific reasons, the panel majority observed that plain error review “invites defense
counsel not to object, since an objection gives the district court an opportunity to
correct any deficiency.” Therefore, “if counsel does not timely object that the reasons
. . . have not been adequately explained, defendant has voluntarily relinquished the
issue, and we should deem it waived, not merely forfeited.” 682 F.3d 755, 763 & n.4
(8th Cir. 2012).
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prior to the Supreme Court’s decision in Esteras, we held that this comment did not
establish procedural error because the district court, as in this case, “focused primarily
on [defendant’s] history and characteristics rather than the retribution for the
offenses.” 757 F.3d 776, 780 & n.2. This is not evidence of plain substantive error
under Esteras and Hall, which require Higgerson to establish it is “‘clear’ or ‘obvious’
that the district court actually relied on § 3553(a)(2)(A) -- because it did so expressly
or by unmistakable implication.” Esteras, 145 S. Ct. at 2045.
Rather, the district court’s comments at the revocation hearing strongly imply
that its focus was primarily on the forward-looking ends of sentencing in
§§ 3553(a)(2)(A)-(C) -- deterrence, incapacitation, and rehabilitation -- that a court
must consider in imposing a revocation sentence. 18 U.S.C. § 3583(e)(3); Esteras,
145 S. Ct. at 2041. In stressing the significance of Higgerson’s repeated refusal to
work, the court stated that “working is a significant part of rehabilitation.” The court
noted that Higgerson’s repeated, unjustified noncompliance with the basic
requirements of supervised release and refusal to comply with community service
obligations showed that the court’s two prior nine-month revocation sentences had
not deterred him from violating his supervised release obligations nor protected the
public from those continuing violations. If the court considered the need to promote
respect for the law at all, “this is an instance of using an excluded factor only as an
insignificant justification. We see no substantive error in giving insignificant weight
to the excluded factor.” Hall, 931 F.3d at 697.
Higgerson’s sentence was not otherwise substantively unreasonable. “We have
repeatedly upheld revocation sentences that varied upward from the advisory
guidelines range because the defendant was a recidivist violator of supervised release
conditions.” United States v. Harris, 55 F.4th 1162, 1164 (8th Cir. 2022) (quotation
omitted, cleaned up). In United States v. Clark, for example, we upheld a 24-month
sentence for a defendant who failed to report to the Probation Office upon release and
violated the rules of his Residential Reentry Center Program, notwithstanding that he
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had previously been sentenced to only 6 months imprisonment after violating seven
conditions during his first term of supervised release. 998 F.3d 363, 366-67, 369-70
(8th Cir. 2021). Here, the court noted that, despite twice revoking Higgerson’s
supervised release and imposing sentences at the high end of the recommended range,
Higgerson “immediately reoffended both times. He has refused to comply with even
the most simple of instructions. He won’t go to sex offender treatment, he won’t get
a job, he won’t pay his restitution.” In DeMarrias, we upheld a 24 month revocation
sentence for a defendant who had been previously sentenced to 12 months
imprisonment because the district court reasonably concluded “the defendant must
learn to follow the rules.” 895 F.3d at 573-74. The district court’s revocation
sentencing decision was reasonably grounded in the history and characteristics of the
defendant and the need to deter future violations. Accordingly, the court did not
abuse its substantial revocation sentencing discretion in imposing a sentence of 18
months imprisonment.
The judgment of the district court is affirmed.
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