United States of America v. Edgardo Esteras

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,
v.
EDGARDO ESTERAS,
Defendant-Appellant.
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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.
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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.

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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).

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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;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most effective
manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for—
(A) the applicable category of offense committed by the applicable
category of defendant as set forth in the guidelines—
(i) issued by the Sentencing Commission pursuant to section
994(a)(1) of title 28, United States Code, subject to any
amendments made to such guidelines by act
of Congress (regardless of whether such amendments have yet to
be incorporated by the Sentencing Commission into amendments
issued under section 994(p) of title 28); and
(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

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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. Whether in the context of an initial or later
supervised-release decision, the purportedly forbidden considerations mentioned in
§ 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

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§ 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

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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. It
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 is not an appropriate means of
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

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[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 in § 3583(e) . . . . [T]here is 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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(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.

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