Date: Mar 13, 2026

Plain-Error Limits on § 3553(a)(2)(A) Challenges After Esteras in Supervised-Release Revocations

1. Introduction

In United States v. Fleeks (5th Cir. Mar. 11, 2026) (unpublished), the Fifth Circuit affirmed an 18-month revocation sentence (plus 18 months of supervised release) imposed after Patrick Dejon Fleeks admitted violating supervised-release conditions by (1) disregarding his probation officer’s instruction to discontinue contact with Andrea Steptoe and (2) testing positive for alcohol.

The district court varied upward from the Chapter 7 policy-statement range of 5 to 11 months, emphasizing repeated noncompliance, prior interventions (including a modification adding mental-health treatment and anger management), and the need for deterrence and sanctioning the breach of trust.

On appeal, Fleeks argued (i) procedural error based on allegedly erroneous factual assumptions tied to a prior, dismissed revocation petition (stemming from recanted assault allegations), (ii) procedural error for impermissible reliance on retributive sentencing purposes barred in revocation under 18 U.S.C. § 3583(e), and (iii) substantive unreasonableness.

2. Summary of the Opinion

The Fifth Circuit applied its two-step revocation review framework and held:

The district court did not rely on materially untrue information; it acknowledged that the earlier petition was dismissed based on a non-prosecution affidavit and did not find the earlier assault allegation true.
Because Fleeks did not preserve his “retributive factors” objection, plain-error principles governed; the record did not make it “clear” or “obvious” that the district court actually relied on § 3553(a)(2)(A).
The sentence was not substantively unreasonable; Fleeks’s substantive challenge largely repackaged his procedural claims, which failed.

3. Analysis

3.1. Precedents Cited

Framework for revocation-sentencing review

United States v. Warren, 720 F.3d 321 (5th Cir. 2013): The court reiterated the “plainly unreasonable” standard for preserved revocation challenges and recognized procedural error where a sentence is selected based on clearly erroneous facts. Warren also states that unpreserved errors are reviewed under Fed. R. Crim. P. 52(b).
United States v. Miller, 634 F.3d 841 (5th Cir. 2011): Supplies the two-step sequencing—procedural review first, then substantive review.
United States v. Kippers, 685 F.3d 491 (5th Cir. 2012): Confirms that, absent procedural error, substantive reasonableness is reviewed for abuse of discretion and identifies clearly erroneous facts as procedural error.

“Clearly erroneous facts” and the defendant’s burden

United States v. Mueller, 902 F.2d 336 (5th Cir. 1990): Quoted via Warren for the proposition that the defendant bears the burden to show reliance on materially untrue information.
United States v. Sanchez, 900 F.3d 678 (5th Cir. 2018): Used for the pragmatic move that the court need not resolve preservation disputes where the defendant loses even under the defendant-friendly framework; also cited for the “heavy burden” on substantive unreasonableness in the revocation setting.

Retributive factors barred in revocation and the post-Esteras landscape

Esteras v. United States, 606 U.S. 185 (2025): The centerpiece—district courts cannot consider § 3553(a)(2)(A) when revoking supervised release because Congress omitted that factor from § 3583(e). The opinion’s practical gloss matters here: where the defendant fails to object, affirmance follows unless it is “clear” or “obvious” that the district court actually relied on § 3553(a)(2)(A), “either expressly or by unmistakable implication.”
United States v. Olano, 507 U.S. 725 (1993): Provides the “clear or obvious” component of plain error referenced by Esteras and applied by the Fifth Circuit in Fleeks.
United States v. Rivera, 784 F.3d 1012 (5th Cir. 2015): Pre-Esteras Fifth Circuit approach requiring retributive factors to be a “dominant” factor for reversal. Fleeks notes Esteras acknowledged but did not address this “intermediate” test.
United States v. Campos, No. 24-50615, 2025 WL 2986382 (5th Cir. Oct. 23, 2025) (unpublished): Cited for the point that the Fifth Circuit had not yet decided what effect Esteras has on its prior “dominant factor” line. Fleeks likewise avoided resolving that broader doctrinal question because Fleeks failed even under Esteras’s plain-error framing.
United States v. Villa, No. 24-50410, 2025 WL 2848988 (5th Cir. Oct. 8, 2025) (unpublished) and Gearlds v. Entergy Servs., Inc., 709 F.3d 448 (5th Cir. 2013): Cited to justify giving “serious consideration” to the Supreme Court’s “recent and detailed discussion,” even if characterized as dictum in Esteras.

Permissible revocation purposes: breach of trust and deterrence

United States v. Savarino, No. 21-20133, 2021 WL 4950235 (5th Cir. Oct. 22, 2021) (unpublished): Used to frame “pattern of noncompliance,” deterrence, and sanctioning breach of trust as proper revocation considerations.
United States v. Cano, 981 F.3d 422 (5th Cir. 2020) (quoting United States v. Daughenbaugh, 793 F. App’x 237 (5th Cir. 2019)): Reinforces the core concept that revocation punishment targets the “breach of trust” rather than simply re-punishing the underlying offense conduct.

Substantive challenges mirroring procedural ones

United States v. Rhine, 637 F.3d 525 (5th Cir. 2011): Supports rejecting substantive challenges that are merely corollaries of failed procedural arguments.
United States v. Gallegos-Ortiz, 843 F. App’x 610 (5th Cir. 2021) (unpublished): Same principle applied in an unpublished revocation context.

3.2. Legal Reasoning

(A) No procedural error from “clearly erroneous facts”

Fleeks argued the district court effectively assumed he assaulted Steptoe, even though she recanted and the first petition was dismissed. The Fifth Circuit focused on the dependency element: it is not enough that contested facts appear in the background; the defendant must show the sentencing court relied on materially untrue information.

The panel read the district court’s remarks as referencing an accurate chronology—multiple law-enforcement and supervision “encounters,” a protective order, explicit supervision instructions, a later arrest for violating the protective order, and repeated noncompliance—while also expressly noting that the earlier petition was dismissed due to a non-prosecution affidavit. Because the district court did not find the assault allegation true and anchored its rationale in admitted violations and supervision history, Fleeks did not carry his burden under Warren/Mueller.

(B) No plain error under Esteras for alleged reliance on § 3553(a)(2)(A)

On the claim that the court considered retribution (“seriousness,” “respect for law,” “just punishment”), Fleeks faced plain-error review because he did not preserve the objection. Applying Esteras, the Fifth Circuit searched for express invocation of § 3553(a)(2)(A) or unmistakable implication that the sentence was driven by retribution.

The district court’s comments—“no regard for the rules,” “prior opportunities,” and “repeat and concerning violations”— were treated as consistent with permissible revocation aims: deterrence, compliance, and sanctioning the breach of trust. The court also explicitly referenced permissible considerations (nature and circumstances, history/characteristics, deterrence) and stated it did not consider barred factors. On this record, it was not “clear” or “obvious” that the court actually relied on § 3553(a)(2)(A), so there was no reversible plain error.

(C) Substantive reasonableness

The Fifth Circuit deemed the substantive attack to be a repackaging of the procedural ones: once the panel rejected the claim that the district court credited recanted allegations or relied on impermissible retribution, there was no basis to conclude the upward variance gave “significant weight” to improper factors under Warren.

3.3. Impact

Post-Esteras, preservation is decisive. Fleeks illustrates the practical burden Esteras places on defendants: without a contemporaneous objection, appellate relief requires a record that makes reliance on § 3553(a)(2)(A) unmistakable—not merely plausible.
Revocation rhetoric vs. retribution. Language such as “no regard for the rules” may sound like “promote respect for the law,” but Fleeks signals that, absent clearer markers, the Fifth Circuit will often classify it as breach-of-trust/deterrence reasoning (per Cano/Savarino) rather than barred retribution.
Unresolved doctrinal question remains. The Fifth Circuit again declined to decide how Esteras affects its earlier “dominant factor” approach (Rivera). Future published cases may need to reconcile Rivera with Esteras, especially for preserved objections.
Background conduct can matter even if unproven—if used properly. Fleeks confirms courts may reference supervision history and prior interventions (including dismissed proceedings) as context, so long as they do not treat disputed allegations as true or as a determinative sentencing fact.

4. Complex Concepts Simplified

Revocation of supervised release: A post-incarceration supervision term can be revoked if the defendant violates conditions (e.g., no-contact directives, substance restrictions). Revocation is not a new conviction; it is a consequence of violating court-imposed conditions.
Chapter 7 policy-statement range: The Sentencing Guidelines provide advisory (non-binding) policy statements for revocation. Here, the advisory range was 5–11 months; the court imposed 18 months, an upward variance.
“Breach of trust”: Revocation sentencing chiefly sanctions the defendant’s failure to comply with supervision—the breach of the court’s trust—rather than re-punishing the underlying offense.
Procedural vs. substantive reasonableness: Procedural issues concern how the sentence was chosen (wrong facts, wrong factors, inadequate explanation). Substantive issues concern whether the length and terms are reasonable given permissible factors.
§ 3553(a)(2)(A) retributive factors: “Seriousness,” “respect for the law,” and “just punishment.” Under Esteras, these are omitted from § 3583(e) and cannot be considered in deciding a revocation sentence.
Plain error: A stringent appellate standard for unpreserved objections. After Esteras, reversal generally requires that improper reliance on § 3553(a)(2)(A) be clear/obvious from the record.

5. Conclusion

United States v. Fleeks is a straightforward application of post-Esteras revocation review in the Fifth Circuit: absent a preserved objection, a defendant challenging a revocation sentence as retributive must point to express or unmistakable reliance on § 3553(a)(2)(A). The decision also underscores the defendant’s burden to show actual reliance on materially untrue facts. As a practical matter, Fleeks reinforces that upward variances in revocation—especially when grounded in repeated noncompliance, deterrence, and breach of trust—will be difficult to overturn without a carefully developed record and timely objections.