The Supreme Court of the United States’ decision last week in Esteras v. United States¹ restricted the factors lower courts may consider in imposing prison sentences following supervised release revocations. Those awaiting the Court’s decision vigorously deliberated the extent to which the Court would constrain district judges’ ability to sentence supervised release offenders based on past bad behavior, rather than on “forward-looking” factors.

With Esteras decided, the practical impact on individual defendants—in the white-collar crime context and elsewhere—is more likely to be a ripple rather than a wave.

Summary of the Supreme Court’s Decision

At issue in Esteras was 18 U.S.C. § 3583, which provides that courts “may” sentence an individual to prison for violating supervised release “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).” As a textual matter, however, that list does not include section 3553(a)(2)(A), which directs that the sentence should be calibrated “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” (emphasis added). The Court has previously held that those backward-looking factors relate to “retribution,” rather than to non-retributivist, forward-looking sentencing principles like deterrence, incapacitation, and rehabilitation.² The question presented in Esteras was whether—in addition to the enumerated forward-looking factors above—courts in the exercise of their discretion may also consider the factors falling on the retributivist side of the sentencing ledger.

Justice Amy Coney Barrett, writing for a 7-2 majority, held that courts may not consider retribution factors, such as the seriousness of the original offense or the need to promote respect for the law, when determining supervised release revocation sentences. The Court reasoned 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.” In vacating the U.S. Court of Appeals for the Sixth Circuit’s contrary holding, the Court rejected counterarguments that (1) the statute does not explicitly say a district court may consider only the enumerated factors, and (2) a rule prohibiting a district court from considering retributive factors would be “unworkable.” Justice Sonia Sotomayor and Justice Ketanji Brown Jackson concurred in substantial part but argued separately that a court should not consider retribution at all when revoking supervised release, even if those retributive principles relate to other factors like deterrence, incapacitation, and rehabilitation.

Justice Samuel Alito, joined by Justice Neil Gorsuch, argued in a forceful dissent that the Esteras holding strained credulity: “Today’s decision is likely to earn the rank of Exhibit A in the trial bench’s catalog of appellate otherworldliness,” reinforcing lower courts’ perception that “appellate colleagues live in a world of airy abstractions” without forethought as “to the practical effects of their holdings.” The dissent went on to describe the majority’s conclusion as requiring mental gymnastics. For example, a court must now consider “the nature and circumstances of the offense” but cannot, under the majority’s reading, also consider “the seriousness of the offense.”

In practice, Esteras will be little more than a speedbump for prosecutors and judges.

It is hard to envision Esteras sending palpable tremors through the world of white-collar criminal defense sentencing. Indeed, it can be fairly viewed as prioritizing textual form over sentencing substance.

To be sure, there is now a new categorical bar on courts’ consideration of section 3553(a)(2)(A)’s retributive factors when making supervised release decisions. However, the odds are slim that a sentencing court, no matter the court’s true perspectives on the seriousness of the original offense and what that underlying offense conduct says about the offender’s present dangerousness and their (dis)respect for the rule of law, will be materially constrained by the Esteras decision. Put another way, given the unavoidable substantive overlap between the sentencing factors, it is difficult to see the decision delivering the panacea of positive impacts that some advocacy groups had hoped for.

Litigants and courts will inevitably reframe the language they use to justify the same requests or the same rulings. In practice, it is unlikely to result in shorter and less punitive revocation sentences, provide defendants with a greater range of appellate arguments, or lead to more consistent sentencing practices due to the constraints imposed by a narrower set of permissible statutory factors.

True, federal courts around the country will, from now on, formally articulate their supervised release revocation sentencing decisions using the language of deterrence (both general and specific), public safety, and rehabilitation. Enhanced punishment based on the nature and severity of the underlying crimes of conviction will, at least officially, be off the table.

But judges are, of course, not blind to the realities of the defendants before them. They may also not be persuaded by the arguments advanced by the criminal law scholars in their amicus brief in support of Esteras that, in contrast to incarceration following parole and probation violations, incarceration following a supervised release violation is “structurally different” because it does not constitute a “moral wrong” and, therefore, “does not deserve retributive punishment.”

Human nature, and the logical convergence of the sanctioned and now-prohibited factors, make it reasonable to speculate that a judge charged with sentencing two different supervised release violators—say, a first-time tax cheat and a multibillion-dollar Ponzi scheme mastermind—will continue to factor in the seriousness of the offenders’ underlying offense of conviction and the need to promote respect for the law.

Put differently, courts will almost certainly still (quietly) consider the retributive factors but will do so more carefully, so they fall within the bounds established by the Esteras majority. Given the substantive overlap between permissible and impermissible factors, the likely outcome is that prosecutors working in federal circuit courts that permitted the use of retributivist factors will simply refashion their stock sentencing memoranda, checklists, and any boilerplate language to create a more appeal-proof sentencing record.

An Opening for Improvements—and the Criminal Defense Bar

None of this is to say that Esteras will not have at least some lasting, substantive impact on criminal sentencing. However, it is not likely to be the expansive one that advocates for the ruling were hoping for.

First, the decision reflects a surprising level of agreement among the justices that “the seriousness of the offense,” “respect for the law,” and “just punishment for the offense” can be appropriately described as “retributive.” Arguably, those factors could easily be slotted into other equally defensible categories, like deterrence. So, the Court’s signaling of what trial judges can and cannot do at sentencing might, as the government contended, result in little more than “substance-free reverse magic words.” In fairness, however, it must be conceded that from a systemic perspective where descriptive accuracy matters, Esteras does add a healthy dose of clarity.

Second, the opinion announces an improbable but nearly ironclad set of circumstances that could make for a promising defense appeal. If a defendant fails to object to a judge’s consideration of retributive factors, any appeal will be governed by a more demanding “plain-error review” standard. But if a defendant does object and the Court refuses to remedy its error, then “the court of appeals should vacate the court’s order and remand for the court to apply the correct standard.” Even then, however, defense counsel would have to hope (against all odds) that the court on remand would somehow reach a different conclusion. That remote possibility exists, at least in theory. (We also note that, because the ruling clarifies the proper interpretation of federal sentencing statutes rather than creating a new rule, it will likely be considered a substantive change in the law so that it can be applied to cases that are still on direct appeal or not yet final.)

Finally, Esteras illustrates the Court’s increasingly warm embrace of deference to legislative intent. Justice Barrett acknowledges the federal statute’s ambiguity and agrees that Congress could have written it more artfully. But she counters, “Congress cannot anticipate (much less account for) every future statutory skirmish—and even if it could, courts have no authority to hold Congress to a ‘perfect as we see it’ standard of drafting.” In that respect, the Court’s ruling shows a deference and fidelity to legislative authority that has come to characterize the conservative majority’s recent approach to many high-profile cases, including its overturning of the Chevron administrative delegation doctrine in its decision last year in Loper Bright Enterprises v. Raimondo.

Esteras will have some impact on the margins and has symbolic and expressive significance. Still, it would be naïve to think that it will have a seismic impact on criminal sentencing, as some advocates anticipated.

Criminal defendants and their advocates who view the Esteras ruling as a landmark decision will likely end up being disappointed if and when judges reach identical outcomes by simply reshaping their rulings to the new mold the Supreme Court has fashioned.

Footnotes

1. U.S. Supreme Court opinion in Esteras v. United States.

2. Tapia v. United States, 564 U.S. 319, 325 (2011).