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Tenth Circuit Deepens Circuit Split on Whether District Courts May Consider ‘Retribution’ in Deciding Whether to Revoke Supervised Release, Ruling It Is an Impermissible Factor to Consider

by Richard Resch

The U.S. Court of Appeals for the Tenth Circuit held that the U.S. District Court for the Eastern District of Oklahoma erred by sentencing the defendant to the statutory maximum for violating the terms of his supervised release because the court based its decision, at least in part, on the need for retribution, which is not an enumerated factor for consideration under the governing statute. Nevertheless, the Court affirmed the sentence because the defendant failed to establish that he is entitled to relief under plain-error review.

In 2010, Donald Booker, Jr., pleaded guilty to one count of felon in possession in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The U.S. District Court for the Northern District of Oklahoma sentenced him to 33 months’ imprisonment and three years of supervised release. His term of supervision began in 2020, and the Eastern District of Oklahoma assumed jurisdiction over his supervised release in March 2021.

After numerous violations of several conditions of his supervised release, his probation officers petitioned to revoke his supervised release on May 3, 2021. The petition was amended twice, and the final amended petition was approved by the District Court on June 29, 2021.

Booker was arrested on September 21, 2021. His final revocation and sentencing hearing was scheduled for December 16, 2021. At the hearing, Booker admitted to the supervised release violations, apologized to the court, and informed the court that he had been self-medicating with illegal drugs.

The court noted that the Guidelines range was 5 to 11 months in prison, with a statutory maximum of 24 months’ imprisonment. The court revoked Booker’s supervised release and imposed the maximum sentence of 24 months, justifying the sentence by explaining “a sentence outside the advisory guideline range is necessary to serve as an adequate deterrent to this defendant as well as others, promote respect for the law, and provide just punishment for the offense, and provide protection for the public.” Booker appealed, arguing that the court impermissibly based its decision on retribution.

The Court began its discussion by stating that it is reviewing for plain error. United States v. Gonzalez-Huerta, 403 F.3d 727 (10th Cir. 2005). That standard of review requires Booker to “establish that (1) the district court committed error; (2) the error was plain — that is, it was obvious under current well-settled law; (3) the error affected the [d]efendant’s substantial rights; and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings.” United States v. Perez-Perez, 992 F.3d 970 (10th Cir. 2021) (quoting United States v. Dalton, 918 F.3d 1117 (10th Cir. 2019)).

The Court noted that District Courts have the authority to revoke a term of supervised release and impose a sentence of imprisonment “when a person violates a condition of his or her supervised release.” United States v. Kelley, 359 F.3d 1302 (10th Cir. 2004). When doing so, District Courts must consider certain specific sentencing factors contained in 18 U.S.C. § 3553(a). Id.; 18 U.S.C. § 3583(e). Section 3583(e) instructs District Courts to consider the factors set forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) in deciding whether to terminate, modify, or revoke a term of supervised release.

However, conspicuously absent from the list of § 3553(a) factors that District Courts may consider is § 3553(a)(2)(A), which provides, in pertinent part: “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense[.]” The Court explained that this is the “retribution” factor, which is one of the “four purposes of sentencing” that District Courts are required to consider when determining the initial sentence. Tapia v. United States, 564 U.S. 319 (2011).

In justifying its above-Guidelines sentence, the District Court quoted from § 3553(a)(2)(A), but that section is clearly omitted from the factors that may be considered, meaning District Courts may not consider it in deciding whether to modify or revoke a term of supervised release. See § 3583(e). However, the Court acknowledged that in a line of unpublished decisions, the Tenth Circuit has not yet determined whether it constitutes error to consider retribution. Consequently, the Court took this opportunity to answer the open question.

The Court began its analysis by stating that when a sentencing statute requires consideration of specific enumerated factors, “it is procedural error to consider unenumerated factors.” See United States v. Smart, 518 F.3d 800 (10th Cir. 2008). The Smart Court held that the District Court committed procedural error by basing an initial prison sentence on a sentencing factor not enumerated in § 3553(a), reasoning that because the statute requires consideration of specific factors, it “implicitly forbids consideration of factors outside its scope.” Smart.

The Court then stated that the rule articulated in Smart applies to the present case because § 3583(e) similarly requires District Courts to consider specific enumerated factors in § 3553(a), reasoning that unenumerated factors, like in Smart, are implicitly forbidden in determining whether to modify or revoke a term of supervised release. United States v. McBride, 633 F.3d 1229 (10th Cir. 2011). Thus, the Court ruled that the omission of § 3553(a)(2)(A) from the enumerated sentencing factors contained in § 3583(e) “precludes a court from considering the need for retribution when modifying or revoking a term of supervised released.”

Applying the newly announced rule, the Court concluded that the District Court erred in its sentencing of Booker because it was not permitted to consider retribution in its sentencing decision but did so by directly quoting from § 3553(a)(2)(A) – an impermissible factor. The Court noted that the District Court discussed several permissible factors in explaining its sentence, but “they do not cancel out the fact that the court also” based its decision on an impermissible factor, explained the Court.

However, that does not end the analysis, the Court stated, because Booker’s appeal fails to satisfy the third prong of plain-error review, i.e., the error affected the defendant’s substantial rights. See Perez-Perez. To satisfy that prong, Booker must show “that there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different.” United States v. Mendoza, 698 F.3d 1303 (10th Cir. 2012).

Based on the overall record of Booker’s numerous violations, the Court stated that it cannot conclude that he would have received a lower sentence had the District Court not made a single reference to § 3553(a)(2)(A) “at the end of a lengthy and specific discussion of the appropriate reasons why a statutory-maximum sentence was necessary….” The Court added that had “Booker raised this objection below, we are confident that the district court would have clarified its remarks and excised the erroneous quotation before imposing the same sentence.”   

Accordingly, the Court affirmed the sentence imposed by the District Court. See: United States v. Booker, 2023 U.S. App. LEXIS 7312 (10th Cir. 2023).

Writer’s note: The Circuits are deeply divided on the issue of whether District Courts may consider retribution in supervised-release revocation decisions. The First, Second, Third, Sixth, and Seventh Circuits have held that District Courts retain discretion to consider all four purposes of punishment – deterrence, incapacitation, rehabilitation, and retribution – despite the omission of retribution in § 3583(e)(3). United States v. Clay, 752 F.3d 1106 (7th Cir. 2014); United States v. Vargas-Davila, 649 F.3d 129 (1st Cir. 2011); United States v. Young, 634 F.3d 233 (3d Cir. 2011); United States v. Lewis, 498 F.3d 393 (6th Cir. 2007); United States v. Williams, 443 F.3d 35 (2d Cir. 2006).

On the other side of the divide, the Fourth, Fifth, Ninth, and now the Tenth Circuits have ruled that District Courts are either prohibited from considering retribution at all or permitted to do so but only to a limited degree. United States v. Booker, 2023 U.S. App. LEXIS 7312 (10th Cir. 2023); United States v. Miller, 634 F.3d 841 (5th Cir. 2011); United States v. Crudup, 461 F.3d 433 (4th Cir. 2006); United States v. Miqbel, 444 F.3d 1173 (9th Cir. 2006).

There is a pressing need for the U.S. Supreme Court to resolve this split among the Circuits. As Professor Douglas Berman observed on his Sentencing Law and Policy blog, based on the U.S. Sentencing Commission’s data indicating that more than 20,000 supervised release hearings are held every year, approximately 100 federal defendants are at least potentially affected by “this jurisprudential divide every single day in federal courts.”

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