Deterrence, Not Retribution, at Supervised-Release Revocation: Ambiguous “Punishment” Remarks Do Not Establish Plain Error Post-Esteras
Introduction
In United States v. Keenan Devron Hunter, Nos. 25-12115 & 25-12116 (11th Cir. Oct. 14, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed concurrent revocation sentences of eight months’ imprisonment and two years’ supervised release imposed in two underlying criminal cases: a 2016 felon-in-possession case and a 2021 escape case from a residential reentry center. The appeal presented two questions:
- Whether the district court committed plain error by impermissibly considering retribution—i.e., the factors in 18 U.S.C. § 3553(a)(2)(A)—when revoking supervised release and imposing sentence under § 3583(e); and
- Whether the revocation sentence was substantively unreasonable under the abuse-of-discretion standard.
The panel (Judges Lagoa, Abudu, and Tjoflat) held there was no plain error—especially in light of the Supreme Court’s recent guidance in Esteras v. United States, 145 S. Ct. 2031 (2025)—and no abuse of discretion. The opinion provides timely, practical instruction on how appellate courts should evaluate arguably retributive language at revocation sentencings and confirms the wide latitude district courts retain when weighing permissible § 3553(a) considerations.
Summary of the Opinion
The court affirmed the revocation sentence on both grounds:
- No plain error on the retribution claim. Under § 3583(e), courts may not consider § 3553(a)(2)(A) factors (seriousness of the offense, respect for law, and just punishment). Applying Esteras, the panel held that an appellate court may not reverse unless it is clear or obvious that the district court actually relied on § 3553(a)(2)(A) expressly or by unmistakable implication. Here, the district judge’s comments—though referencing “punishment” and “sending a message”—were read as focusing on deterrence of future noncompliance and the defendant’s repeated failure to follow rules, not on retribution for the underlying crimes. Even the judge’s boilerplate reference to having considered § 3553(a)(1)–(7) did not, without more, prove reliance on § 3553(a)(2)(A).
- No abuse of discretion on substantive reasonableness. The district court reasonably weighed Hunter’s history, repeated drug positives, and noncompliance against mitigating factors such as addiction and supportive community. The eight-month custodial term fell within the applicable Guidelines range (8–14 months) and well below the two-year statutory maximum, and the two-year supervised-release term was within statutory limits. The totality of the circumstances did not show a clear error of judgment.
Background
- 2016 case (No. 3:16-cr-00180-BJD-LLL-1): Hunter pled guilty to being a felon in possession of a firearm, 18 U.S.C. §§ 922(g)(1) & 924(a)(2), and received 60 months’ imprisonment and 3 years’ supervised release.
- 2021 case (No. 3:21-cr-00043-BJD-PDB-1): While at a residential reentry center near the end of his custodial term, Hunter refused to provide a urine sample and left the facility without authorization. He pled guilty to escape, 18 U.S.C. §§ 751(a) & 4082(a), and received 27 months’ imprisonment and 3 years’ supervised release.
- Supervised-release violations: During supervision, Hunter tested positive three times for marijuana and once for cocaine. At a joint revocation hearing in both cases, he admitted the violations.
- Guidelines and statutory caps: The district court calculated an 8–14 month Guidelines range, a two-year statutory maximum term of imprisonment upon revocation, and up to three years of supervised release available after imprisonment.
- Key sentencing remarks: The district court focused on Hunter’s persistent noncompliance with “rules that we all share” and the “orders of this Court,” remarking that the criminal justice system “is designed to punish,” that continuing the same conduct would result in continued punishment, and that the court was “trying to send a signal” that consequences escalate if noncompliance continues.
- Sentence imposed: Eight months’ imprisonment and two years’ supervised release, concurrent across both cases, with the court stating that it had considered “the factors set forth in Title 18, United States Code, Sections 3553(a)(1) through (7).”
Detailed Analysis
Precedents Cited and Their Role
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Esteras v. United States, 145 S. Ct. 2031 (2025):
The Supreme Court’s recent decision anchors the Eleventh Circuit’s plain-error framework in this context. Esteras held that in supervised-release revocations under § 3583(e), a district court may not rely on § 3553(a)(2)(A)’s retributive purposes. On plain-error review, an appellate court will affirm “unless it is clear or obvious that the district court actually relied on § 3553(a)(2)(A) … either expressly or by unmistakable implication.” The opinion quotes Esteras for two related propositions:
- The explicit carve-out: § 3583(e) excludes § 3553(a)(2)(A).
- Permissible uses of offense facts: Courts “cannot consider the nature and circumstances of the offense as relevant to retribution,” but may consider them for deterrence, incapacitation, and rehabilitation.
- United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020): Confirms the statutory framework: when revoking supervised release under § 3583(e), a court may consider many § 3553(a) factors, but not § 3553(a)(2)(A). The panel leans on Gomez for the carve-out’s contours and also to note that a sentence below the statutory maximum supports reasonableness.
- United States v. Steiger, 107 F.4th 1315 (11th Cir. 2024): Provides the plain-error standard where a sentencing objection was not raised below. Steiger situates the appellate posture: Hunter did not object contemporaneously, so the demanding plain-error standard governs the § 3553(a)(2)(A) issue.
- United States v. King, 57 F.4th 1334 (11th Cir. 2023): Articulates the abuse-of-discretion standard for substantive reasonableness in revocation cases, emphasizing a deferential, totality-of-the-circumstances review.
- United States v. Butler, 39 F.4th 1349 (11th Cir. 2022); United States v. Rosales-Bruno, 789 F.3d 1249 (11th Cir. 2015): Reinforce the district court’s wide latitude in assigning weight to § 3553(a) factors, and that disproportionate weight alone does not equal unreasonableness absent a clear error of judgment.
- United States v. Al Jaberi, 97 F.4th 1310 (11th Cir. 2024): Clarifies that a court need not explicitly address every § 3553(a) factor or each piece of mitigation; an acknowledgment of consideration suffices.
- United States v. Moore, 22 F.4th 1258 (11th Cir. 2022): Explains the “definite and firm conviction” threshold for finding a clear error of judgment in the substantive reasonableness analysis.
Legal Reasoning
1) Plain Error and the § 3553(a)(2)(A) Carve-Out at Revocation
Section 3583(e) authorizes a court to revoke supervised release and impose imprisonment after considering many—but not all—§ 3553(a) factors. Critically, § 3553(a)(2)(A)’s retributive aims (reflect the seriousness of the offense, promote respect for law, provide just punishment) are excluded. The Supreme Court’s Esteras decision instructs that on plain-error review, an appellate court will not reverse unless it is clear or obvious that the district court actually relied on the prohibited factor either expressly or by unmistakable implication.
Applying that framework, the Eleventh Circuit parsed the district court’s remarks in context:
- The court emphasized Hunter’s “history of not following the rules that we share and the rules of this court,” and that prior penalties “did not drive home the importance of following the rules.”
- It noted that “the criminal justice system is designed to punish” and warned that continued violations would result in “continued” punishment;
- It expressly framed the sentence as “trying to send a signal” that “there are going to be consequences” for ongoing noncompliance.
The panel read these statements as addressing deterrence of future violations, protection of the public from continued noncompliance, and Hunter’s characteristics/history—factors squarely permitted under § 3583(e) through § 3553(a)(1) and § 3553(a)(2)(B)–(D). Crucially, the court was not meting out “just punishment” for the underlying firearm or escape offenses, and it did not tie the sanction to the “seriousness” of those underlying crimes or “promoting respect for the law” in the retributive sense. Rather, the focus was on persuading this particular supervisee to comply going forward.
The defense pointed to the district court’s boilerplate remark that it considered “the factors set forth in Title 18, United States Code, Sections 3553(a)(1) through (7).” Because that formulation literally includes § 3553(a)(2)(A), defendants often argue that such recitations demonstrate reliance on a prohibited factor at revocation. The panel rejected that inference here. Echoing Esteras’s high bar, it required concrete indicators of actual reliance. The absence of any specific mention of seriousness, respect, or just punishment—and the contextual emphasis on deterrence of noncompliance—meant there was no clear or obvious § 3553(a)(2)(A) reliance “either expressly or by unmistakable implication.”
Bottom line: No plain error.
2) Substantive Reasonableness
Under abuse-of-discretion review, the question is whether the district court failed to consider a significant factor, gave weight to an improper factor, or committed a clear error of judgment in balancing proper factors. The panel found none of the above.
The district court weighed:
- Against Hunter: repeated violations, drug positives, and a “less than sterling” record of compliance;
- In mitigation: addiction, the presence of family and friends at sentencing, and a supportive letter.
The court’s chosen sentence—eight months’ imprisonment (the very bottom of the 8–14 month Guidelines range) and two years’ supervised release—was well below the two-year statutory maximum term of imprisonment available upon revocation and within the statutory cap for supervised release. The panel reiterated that district courts need not assign equal weight to each factor and that sentences below the statutory maximum are an indicator of reasonableness. No abuse of discretion.
Impact and Implications
- Post-Esteras burden on appellants is substantial. Defendants challenging revocation sentences for improper reliance on § 3553(a)(2)(A) must point to record language that clearly or unmistakably ties the sentence to retribution. Ambiguous references to “punishment” or “sending a message” will be read through the permissible lenses of deterrence, incapacitation, and rehabilitation—especially absent a contemporaneous objection.
- Boilerplate “§ 3553(a)(1)–(7)” recitations are not self-proving error. Although courts should avoid formulations that could be read as including § 3553(a)(2)(A) at revocation, this opinion signals that such boilerplate—without more—does not establish reliance on a prohibited factor under plain-error review.
- Practice pointer for defense counsel: preserve objections. Because the standard of review drove the outcome, defense counsel should object contemporaneously if the court mentions “seriousness,” “respect for the law,” or “just punishment,” or if the court uses language that may be retributive. Preservation can shift review from plain error to abuse of discretion (or even de novo on legal error), materially improving the appellant’s posture.
- Guidance for district courts. When revoking supervised release, tie remarks explicitly to the permissible purposes—deterrence, protection of the public, rehabilitation—and the defendant’s history and characteristics. If referencing “punishment,” clarify that the sanction addresses the breach of conditions and is aimed at deterring further violations, not at imposing “just punishment” for the underlying offense.
- Continued deference on substantive reasonableness. The Eleventh Circuit reiterates significant district court discretion in weighing factors, and that within-range sentences below the statutory maximum are likely to withstand appellate review.
- Unpublished but persuasive. Although the opinion is marked “Not for Publication” and thus not binding precedent in the Eleventh Circuit, it is a timely, persuasive application of Esteras that will likely influence district court practice and appellate briefing within the Circuit.
Complex Concepts Simplified
- Supervised release: A period of community supervision following imprisonment, with court-ordered conditions. Violations can result in revocation and reimprisonment.
- Revocation sentencing under § 3583(e): When imposing a revocation sentence, courts must consider certain § 3553(a) factors (e.g., the defendant’s history and characteristics; deterrence; public protection; needed treatment) but may not consider § 3553(a)(2)(A)’s retributive purposes (seriousness, respect for law, just punishment).
- Retribution vs. deterrence/incapacitation/rehabilitation: Retribution is backward-looking punishment for an offense’s seriousness. Deterrence aims to discourage future violations; incapacitation protects the public by limiting a person’s ability to reoffend; rehabilitation focuses on treatment and correction.
- Plain-error review: A demanding appellate standard applied when an argument was not preserved in the district court. Reversal generally requires an obvious error that affected substantial rights and seriously impugned the proceedings’ fairness; in this setting, Esteras requires clear or unmistakable reliance on a prohibited factor.
- Substantive reasonableness and abuse of discretion: Appellate courts defer to the district court’s weighing of factors and reverse only if there is a clear error of judgment in balancing permissible considerations. A sentence within the Guidelines range and well below statutory maximum often signals reasonableness.
- Guidelines range vs. statutory maximum: The Guidelines provide an advisory range; statutes set absolute caps. Here, the 8–14 month range operated against a two-year statutory maximum term of imprisonment for the revocation.
Conclusion
United States v. Hunter reinforces a post-Esteras evidentiary and doctrinal reality: at revocation, general references to “punishment” or “sending a message” will not, without more, amount to clear or unmistakable reliance on § 3553(a)(2)(A)’s retributive aims. Context matters. Where the sentencing judge’s focus is on the defendant’s persistent noncompliance, deterrence of future violations, and the defendant’s history and characteristics, the sentence will withstand plain-error scrutiny even if the court uses imprecise language or boilerplate recitations.
The decision also underscores the Eleventh Circuit’s deferential posture on substantive reasonableness: district courts may assign great weight to compliance history and deterrence at revocation, need not address every mitigating point on the record, and will be upheld so long as they remain within the statutory and advisory guardrails and avoid improper considerations. For practitioners, the message is twofold: preserve objections to any arguably retributive language at revocation, and frame sentencing arguments tightly around the permissible § 3583(e) purposes of deterrence, public protection, and rehabilitation.
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