Esteras Plain-Error Barrier and PSI Admissions at Revocation: The Eleventh Circuit’s Framework in United States v. Higgs

Introduction

In United States v. Zeno Higgs (11th Cir. No. 25-10996, Sept. 22, 2025) (per curiam) (unpublished), the Eleventh Circuit affirmed the revocation of a term of supervised release and an above-Guidelines 17-month revocation sentence following a new episode of unlawful reentry. The appeal raised two issues that are increasingly central to federal revocation practice:

Whether the district court erred by admitting hearsay at the revocation hearing without conducting the balancing required by United States v. Frazier, 26 F.3d 110 (11th Cir. 1994).
Whether the revocation sentence was procedurally or substantively unreasonable because the court relied on impermissible retributive considerations barred by 18 U.S.C. § 3553(a)(2)(A) after the Supreme Court’s decision in Esteras v. United States, 145 S. Ct. 2031 (2025), and because it considered foreign convictions contained in a prior Presentence Investigation Report (PSI).

The panel held that any Frazier error was harmless given the defendant’s own admissions and that the sentencing record did not plainly show reliance on § 3553(a)(2)(A). The court also approved reliance on undisputed PSI facts—here, foreign priors—at a revocation proceeding where those facts were not previously objected to.

Summary of the Opinion

Higgs, previously convicted of unlawful reentry under 8 U.S.C. § 1326(a) and (b)(1), was deported but returned by boat from the Bahamas to Florida and did not report to Probation within 72 hours. At his revocation hearing he admitted the core conduct. The district court revoked and imposed a 17-month imprisonment term, above the advisory range.

On appeal:

Hearsay/Frazier issue: The panel agreed the district court erred by not performing the Frazier balancing before admitting hearsay (Agent testimony that Higgs lacked permission to reenter), but found the error harmless because the court did not “explicitly rely” on that hearsay and Higgs’s own testimony overwhelmingly established the violations.
Sentencing/Esteras issue: Applying plain-error review (no specific objection below), the panel held it was neither “clear” nor “obvious” that the district court actually relied on § 3553(a)(2)(A)’s retributive purposes. The record supported a forward-looking rationale (deterrence/incapacitation), which § 3583(e) permits after Esteras. The panel also rejected the challenge to using foreign convictions from the earlier PSI because those facts were deemed admitted when not objected to at the original sentencing and are sufficiently reliable at revocation.

The judgment was affirmed.

Factual and Procedural Background

Higgs pled guilty in 2022 to illegal reentry under 8 U.S.C. § 1326(a), (b)(1), receiving 12 months and 1 day plus three years of supervised release. Special conditions required him not to reenter the United States without written permission and to report to Probation within 72 hours if he reentered. He was released on supervised release in February 2024 and deported in April 2024.

By September 2024, Probation petitioned for revocation, alleging multiple violations including illegal reentry, returning without written permission, and failing to report within 72 hours. At the March 19, 2025 hearing, Higgs admitted paying $3,000 to be ferried from the Bahamas, disembarking offshore Broward County and swimming to shore, bypassing inspection and not presenting identification. He also admitted he remained in the United States for more than 72 hours before attempting to notify authorities. The district court revoked and imposed 17 months. Higgs appealed.

Detailed Analysis

Precedents Cited and Their Influence

United States v. Frazier, 26 F.3d 110 (11th Cir. 1994):
Frazier holds that while the Federal Rules of Evidence and the Sixth Amendment Confrontation Clause do not apply in revocation proceedings, minimal due process requires a balancing: a court must weigh the defendant’s confrontation interest against the government’s reasons for not producing the witness before admitting hearsay. The panel found the district court failed to conduct this balancing, but treated the error as harmless because the revocation was supported by Higgs’s own admissions. Frazier thus framed the admissibility issue and supplied the harmless-error pathway.
Morrissey v. Brewer, 408 U.S. 471 (1972):
Establishes that parole revocation is not a “criminal prosecution,” so the Sixth Amendment confrontation right does not apply. The Eleventh Circuit analogizes supervised release to parole.
United States v. Cantellano, 430 F.3d 1142 (11th Cir. 2005):
Confrontation is not a sentencing right; hearsay can inform sentencing if sufficiently reliable. Supports the admission of reliable hearsay in revocation/sentencing contexts.
United States v. Zlatogur, 271 F.3d 1025 (11th Cir. 2001):
Sentencing courts may consider hearsay that has sufficient indicia of reliability, supported by explicit findings and an opportunity to rebut. Provides the reliability frame the panel invokes.
United States v. Ghertler, 605 F.3d 1256 (11th Cir. 2010):
To show reliance on improper or unreliable information, a defendant must prove the information is materially false or unreliable and that the court explicitly relied on it. The panel uses Ghertler to conclude Higgs failed to show explicit reliance on the ICE agent’s hearsay.
United States v. Moore, 22 F.4th 1258 (11th Cir. 2022):
Any error in admitting hearsay is harmless when other properly considered evidence overwhelmingly establishes the violation. This principle supports affirmance despite the Frazier lapse.
United States v. Cunningham, 607 F.3d 1264 (11th Cir. 2010):
The standard of proof for revocation is preponderance of the evidence. The defendant’s admissions readily satisfied this standard here.
United States v. Irey, 612 F.3d 1160 (11th Cir. 2010) (en banc); United States v. Butler, 39 F.4th 1349 (11th Cir. 2022); United States v. Ortiz-Delgado, 451 F.3d 752 (11th Cir. 2006); United States v. Trailer, 827 F.3d 933 (11th Cir. 2016); United States v. Vandergrift, 754 F.3d 1303 (11th Cir. 2014):
These decisions supply the abuse-of-discretion framework for sentencing review (both procedural and substantive reasonableness) and confirm the same standard applies to revocation sentences.
Kimbrough v. United States, 552 U.S. 85 (2007):
Reinforces the overarching parsimony principle (“sufficient, but not greater than necessary”), which governs sentencing under § 3553(a).
United States v. Hippolyte, 712 F.3d 535 (11th Cir. 2013); United States v. Williams, 526 F.3d 1312 (11th Cir. 2008); United States v. Riley, 995 F.3d 1272 (11th Cir. 2021):
Address variances, emphasizing that the degree of deviation must be supported by sufficiently compelling reasons; recidivism can justify upward variances; sentences well below the statutory maximum tend to be reasonable.
Esteras v. United States, 145 S. Ct. 2031 (2025):
The Supreme Court resolved a circuit split by holding that district courts may not consider § 3553(a)(2)(A) (retributive purposes—seriousness, respect for law, just punishment) when imposing a revocation sentence under § 3583(e). Esteras also instructs that unpreserved claims are reviewed for plain error and that affirmance is required unless it is clear or obvious that the district court actually relied on § 3553(a)(2)(A) “expressly or by unmistakable implication.” The panel applied Esteras’s plain-error rubric and found no clear reliance. Esteras expressly left open whether retribution for the violation conduct (as distinct from the underlying offense) is permissible; the panel flags that unresolved issue.
United States v. Wade, 458 F.3d 1273 (11th Cir. 2006); United States v. Bennett, 472 F.3d 825 (11th Cir. 2006); United States v. Wilson, 183 F.3d 1291 (11th Cir. 1999); United States v. Milano, 32 F.3d 1499 (11th Cir. 1994):
Together, these cases establish that unobjected-to PSI facts are deemed admitted and may be relied upon at sentencing; reliable hearsay is permissible; and a defendant cannot use revocation to relitigate PSI facts he failed to contest at the original sentencing. The panel uses this line to reject Higgs’s challenge to foreign priors included in his PSI.
United States v. Zinn, 321 F.3d 1084 (11th Cir. 2003):
Clarifies that failure to state specific grounds below leads to plain-error review on appeal; this governs the Esteras claim here.

Legal Reasoning

1) Hearsay and the Frazier Balancing Test

The district court overruled a hearsay objection by stating that hearsay is admissible in revocation proceedings, without conducting the required Frazier balancing. That was error: even though the Federal Rules of Evidence and the Sixth Amendment Confrontation Clause do not apply in revocation hearings, minimal due process requires the court to weigh the defendant’s confrontation interests against the government’s reasons for not producing the declarant and to ensure reliability.

Nonetheless, the panel deemed the error harmless. Applying Ghertler, it found no “explicit reliance” on the hearsay and, in any event, the defendant’s own admissions supplied overwhelming proof that he (a) reentered unlawfully, (b) did so without written permission, and (c) failed to report within 72 hours. Under Moore and Frazier itself, such a record renders any hearsay admission harmless because the violations were established by a preponderance through admissible evidence.

2) Reasonableness of the Revocation Sentence after Esteras

Esteras prohibits reliance on § 3553(a)(2)(A) in revocation sentencing under § 3583(e). Because Higgs did not make a specific Esteras-type objection below, the Eleventh Circuit reviewed for plain error: the panel would reverse only if it were clear or obvious that the district court actually relied on § 3553(a)(2)(A) “expressly or by unmistakable implication.”

The district court recounted Higgs’s multiple arrests, convictions, five deportations, resistance to arrest, and a pattern of “not following the rules,” stating that “a departure up to 17 months is justified based on [Higgs’s] criminal activity and his lack of respect for the law and to follow the rules.” The defense argued these are backward-looking, retributive rationales. The government countered that the court invoked this history to support forward-looking aims (deterrence and incapacitation).

The panel held that, on plain-error review, the record did not clearly demonstrate reliance on § 3553(a)(2)(A). The court’s statements could be read as forward-looking. And even if the district court had some retributive impulse, the Supreme Court left open whether a court may impose some sanction to account for the violation conduct itself (as opposed to the underlying offense). Either way, the panel could not say the court clearly or obviously invoked § 3553(a)(2)(A) rather than permissible factors such as deterrence, incapacitation, and the defendant’s history and characteristics (§ 3553(a)(1), (2)(B)–(D), (4)–(7)), which § 3583(e) allows.

Substantively, the panel concluded the upward variance was supported by sufficiently compelling reasons, particularly repeated recidivism—an accepted ground for upward variances—and the sentence was well below the statutory maximum available upon revocation for a Class C felony (up to 24 months), underscoring reasonableness.

3) Use of Foreign Convictions in the PSI at Revocation

The panel rejected the challenge to “unreliable” foreign priors contained in Higgs’s 2022 PSI. Because Higgs did not object to those PSI facts at the original sentencing, they were deemed admitted under Wade and could be used at revocation. Consistent with Bennett, Wilson, and Milano, sentencing courts may rely on undisputed PSI facts and reliable hearsay; revocation is not the venue for a late-breaking challenge to the original PSI.

Impact and Practical Implications

Harmless-error containment of Frazier issues: Even where a district court neglects the Frazier balancing, affirmance is likely if the record contains the defendant’s own admissions or other strong, non-hearsay proof of violations. Practitioners should ensure a concrete proffer of prejudice and highlight any explicit reliance on the hearsay.
Esteras’s plain-error gatekeeping: Post-Esteras, defendants must specifically object to § 3553(a)(2)(A) reliance to avoid plain-error review. On appeal, they must identify clear or unmistakable indications of retributive reliance; ambiguous references to criminal history, noncompliance, or “respect for the law” will not suffice if those statements can be framed as deterrence/incapacitation.
Open question preserved: The Eleventh Circuit notes Esteras left unresolved whether “retribution for the violation” itself can be a permissible consideration. This issue will likely be litigated further. Defense counsel should press for clarification and request that district courts specify the permissible, forward-looking purposes anchoring the sentence.
PSI admissions travel to revocation: Unobjected PSI facts—including foreign convictions—remain fair game at revocation. Counsel must lodge specific PSI objections at the original sentencing; trying to exclude those facts later is unlikely to succeed.
Record-building matters: District courts can minimize Esteras-based reversals by expressly cabining their analysis to § 3583(e)-permitted factors (deterrence, protection of the public, rehabilitation) and the defendant’s history and characteristics, while avoiding § 3553(a)(2)(A) language. Defendants should request such clarifications on the record.

Complex Concepts Simplified

Supervised release vs. parole/probation: Supervised release follows imprisonment and is overseen by Probation; violations can lead to revocation and imprisonment. Courts often analogize revocation to parole revocation for due process purposes.
Hearsay at revocation: Hearsay is not categorically barred, but before admitting it the court should balance confrontation interests against the government’s reasons for not producing the declarant (Frazier) and ensure the hearsay is reliable.
Preponderance of the evidence: The government must show it is more likely than not that the defendant violated a condition. Defendant admissions typically satisfy this standard.
Plain-error review: If a specific objection was not made in the district court, the appellate court will reverse only if the error is clear or obvious and affected substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.
§ 3583(e) and § 3553(a): When revoking supervised release, courts consider certain § 3553(a) factors (e.g., deterrence, public protection, rehabilitation, history/characteristics), but may not consider § 3553(a)(2)(A) (seriousness, respect for law, just punishment) after Esteras.
Upward variance: A sentence above the advisory range must be justified by sufficiently compelling reasons. Recidivism and risk of reoffense commonly support variances.
Presentence Investigation Report (PSI): A report prepared for sentencing that compiles the defendant’s history, including convictions. Failure to object to a factual statement in the PSI at the original sentencing deems it admitted for later purposes, including revocation.

Conclusion

Although unpublished, United States v. Higgs crystallizes three important points in Eleventh Circuit revocation practice:

Frazier balancing remains required for hearsay, but its omission will be treated as harmless where the violations are otherwise overwhelmingly established—especially through the defendant’s own admissions.
After Esteras, challenges to retributive reliance must be preserved and will fail on plain-error review absent clear or unmistakable proof that the sentencing court actually relied on § 3553(a)(2)(A). Courts may validly frame recidivism and noncompliance concerns as forward-looking deterrence and incapacitation rationales.
Undisputed PSI facts—including foreign convictions—are sufficiently reliable and remain available to the court at revocation; defendants cannot relitigate those facts after failing to object at the original sentencing.

By affirming both the revocation and the upward variance, the Eleventh Circuit signals a pragmatic application of Esteras and long-standing sentencing doctrines: revocation is a forward-looking sanction guided by § 3583(e), and procedural lapses in evidence handling will not upend outcomes when the record independently and reliably supports both violation findings and the chosen sentence.