Tag Archives: 18 usc 3583(e)

Big White Bear Banished… Or Is He? – Update for June 24, 2025

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

‘DON’T THINK ABOUT THE BIG WHITE BEAR’ IN SENTENCING SUPERVISED RELEASE VIOLATIONS, SCOTUS TELLS JUDGES

When a federal prisoner who is out of prison but serving a term of supervised release (a version of parole after a prison term is served) gets violated for breaching one of the many supervised release conditions, the Court may impose some more time in prison. When doing so, the supervised release statute (18 USC § 3583(e)) directs the Court to consider most of the sentencing factors in the Guidelines.

But not all. Conspicuously missing from the list of permissible factors listed in § 3583(e) is § 3553(a)(2)(A), which directs a district court to consider “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.”

Edgardo Esteras pled guilty to conspiring to distribute heroin. The district court sentenced him to 12 months in prison followed by a 6-year term of supervised release. He did his time and began his supervised release. Eventually, he was arrested and charged with domestic violence and other crimes.

The district court revoked Eddie’s supervised release and ordered 24 months of reimprisonment, explaining that his earlier sentence had been “rather lenient” and that his revocation sentence must “promote respect for the law,” a consideration enumerated in 18 USC § 3553(a)(2)(A) but not authorized to be considered in fashioning a supervised release revocation sentence by § 3583(e).

The 6th Circuit affirmed the sentence, holding that a district court may consider § 3553(a)(2)(A) when revoking supervised release even though it is not one of the listed factors to be considered in 18 USC § 3583(e).

Legend has it that as a boy, Russian author Leo Tolstoy and his brother formed a club. To be initiated, the aspirant was required to stand in a corner for five minutes and not think about a big white bear. Last week, the Supreme Court told district courts to ignore the bear when sentencing supervised release violations.

Writing for the 7-2- majority, Justice Barrett reversed the 6th Circuit in what seemed to be an easy lift for the Court. The decision applied the well-established canon of statutory interpretation “expressio unius est exclusio alterius” (expressing one item of an associated group excludes another item not mentioned). In other words, where a statute provides a list of what can or cannot be considered – the classic example being Section 61 of the Internal Revenue Code,  which lists ten examples of what constitutes “gross income” – that detailed list implicitly excludes anything not listed.

Likewise, the Supreme Court held that where Congress provided in § 3583(e) that the Court should consider a list of eight of the ten sentencing factors from 18 USC § 3553(a) when sentencing on a supervised release violation, “[t]he natural implication is that Congress did not intend courts to consider the other two factors…” Justice Barrett wrote that “Congress’s decision to enumerate most of the sentencing factors while omitting § 3553(a)(2)(A) raises a strong inference that courts may not consider that factor when deciding whether to revoke a term of supervised release. This inference is consistent with both the statutory structure and the role that supervised release plays in the sentencing process.”

But such a Pyrrhic victory! Any judge worth a robe and wig can easily figure out how to throttle a mutt like Eddie — who unquestionably got a real break in his original heroin sentence — with a maxxed out supervised release sentence that will withstand judicial review. The supervised release sentence may still be based on the “nature and circumstances of the offense and the history and characteristics of the defendant” (§ 3553(a)(1)), on the need “to afford adequate deterrence to criminal conduct” (§ 3553(a)(2)(B)) and the need “to protect the public from further crimes of the defendant” (§ 3553((a)(2)(C)). The judge can describe the offender as having the characteristic of “not learning from his mistakes” or as needing a long supervised release sentence because he has not yet been deterred from criminal conduct or as needing to be locked up to protect the public.

Different spirits summoned, but the same result. As long as no one mentions the big white bear, a canny sentencing judge can think about the bruin all he or she wants to and sentence accordingly.

As for Eddie, he finished his supervised release sentence in October 2024, so the Supreme Court decision does little for him.  But maybe it will have some beneficial effect. It seems Edgardo was arrested on a fresh supervised release violation last month and is currently held by the Marshal Service. He will appear in front of Judge Benita Y. Pearson (N.D. Ohio) for a hearing in three weeks.

We’ll see if the bear comes up during that hearing.

Esteras v. United States, Case No. 23-7483, 2025 U.S. LEXIS 2382 (Jun 20, 2025)

– Thomas L. Root

Freaky Friday – Update for November 12, 2021

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

NEWS OF THE WEIRD

What’s Done is Done: In the 1st Circuit, Junito Melendez was denied a First Step Act § 404 sentence reduction under the Fair Sentencing Act (FSA). Junito finished his prison sentence in 2007 and got off supervised release three years later. Unfortunately, after ten years as a free man, he is now facing a new drug conspiracy charge.

goingback211112Therein lies the problem. Junito was released from his prior 109-month sentence within 15 years of the current conspiracy charge, so he faces a mandatory 10-year minimum sentence under 21 USC § 841(b)(1)(B). But if the prior sentence were to be changed consistent with the FSA, his release date would have been much earlier, and it would thus have fallen well more than 15 years before the current case. Had that been the case, he’d be facing no mandatory minimum now.

The 1st Circuit turned him down, holding that the word “release” in 21 USC § 802(57), which defines a “serious drug felony,” focuses on the “historical facts of a defendant’s sentence when determining whether § 802(57)‘s definition is met.” Regardless of what a different, shorter sentence might have yielded, the historical fact is that Junito was released in 2007. What’s more, the Circuit said, “Congress used the phrase ‘serious drug felony’ in the statute, signaling its intent for the backward-looking language of § 802(57)… to apply to the 10-year mandatory minimum.”

There just ain’t no shortening a sentence that’s already completely in the past tense.

I Should Have Been Watching Him While He Was Watching Me: Jason Sheppard, on supervised release after a drug sentence, discovered that his girlfriend had developed a cozy “personal relationship” with his probation officer, one Jeff Sciarrino. That’s one way to keep tabs on your supervisee, we suppose.

[Read the salacious details here]

Needless to say, the discovery did not enhance Jason’s relationship with his girlfriend. They broke up over her cheatin’ heart.

breakingup211112In his grief, Jason moved for early termination of supervised release under 18 USC § 3583(e), arguing that the breakup “was negatively impacting his rehabilitation, thereby undermining any utility in continued supervision.” Jason made the rather obvious claim to the district court that “the probation officer was never concerned with [his] rehabilitation and appears to use his position for his own personal interests.”

The district court denied Jason’s motion, and last week the 3rd Circuit agreed. It held the District Court acted within its discretion to conclude that  Probation Officer Sciarrino’s amorous misconduct “has little to do with whether Sheppard should continue under the supervision of a different officer.”

The Circuit criticized the District Court, however, for holding that the PO’s misconduct “actually undermines” Jason’s motion for early termination, because the upset may interfere with Jason’s mental health treatment.” The Circuit said, “the District Court’s order includes an inference that Sheppard is responsible not only for his own conduct, but also must shoulder any and all negative repercussions from the misconduct of his probation officer. This inference is improper… when evaluating a motion for early termination, a district court, particularly in the absence of holding an evidentiary hearing, may not impute a probation officer’s alleged improper actions to a defendant serving a term of supervised release, so as to justify continued (or additional) rehabilitative oversight.”

Nevertheless, the Court was not very happy with the U.S. Probation Office:

A probation officer’s communications of such a “personal” nature with an assigned defendant’s significant other are not only entirely inappropriate and unprofessional, but they also undermine the primary objective of supervised release – i.e., “to facilitate the integration of offenders back into the community rather than to punish them.” It also challenges the role of probation officers as trusted government officials who, in performing their duties, are “supposed to have in mind the welfare of the probationer…” In Sheppard’s case, his probation officer implicated Sheppard’s personal life in his own — and to such a degree that, according to Sheppard, it caused him to break up with his live-in girlfriend, with whom he considered to be in a “lifelong commitment.” If this is not the antithesis to assisting Sheppard in transitioning back into the community, and having his “welfare” in mind, we do not know what is.
supervisedleash181107In all candor, I am constrained to note that even when Probation Officers act appropriately, they provide little benefit to supervisees beyond what Probation Officer Lothario provided to Jason. Supervised release is largely a snare for the unwary supervisee, with a sorry record of violating about one of three post-release folks entrusted to the Probation Office’s care.

United States v. Melendez, Case No 20-1575, 2021 U.S.App. LEXIS 31858 (1st Cir., October 22, 2021)

United States v. Sheppard, Case No 20-3088, 2021 U.S.App. LEXIS 32722 (3d Cir., November 3, 2021)

– Thomas L. Root