Revocation Sentencing After Esteras: A Retracted § 3553(a)(2)(A) Reference and Public-Safety-Based Reasoning Do Not Create Reversible Procedural Error

Case: United States v. Yazzie (10th Cir. June 12, 2026) (Order and Judgment, nonprecedential)
Court: U.S. Court of Appeals for the Tenth Circuit
Core Rule Applied: In revocation sentencing under 18 U.S.C. § 3583(e), courts may not consider retribution (§ 3553(a)(2)(A)); on plain-error review, reversal requires a clear/obvious showing the court actually relied on that forbidden purpose, not merely that it mentioned it—especially where the court immediately retracts and anchors the sentence in deterrence, public protection, and rehabilitation.

1. Introduction

Parties and posture. The United States (Appellee) defended an 18-month prison sentence imposed on Emanuel Yazzie (Appellant) after his fourth revocation of supervised release. Yazzie argued the district court’s above-Guidelines revocation sentence was both procedurally and substantively unreasonable.

Background. Yazzie’s underlying conviction was for sexual abuse of a minor in Indian Country under 18 U.S.C. § 2243(a), followed by a lengthy supervised release term. Over several years, he repeatedly violated supervision, incurred new charges and convictions (including failure to register as a sex offender), and accumulated multiple revocation sentences. In the fourth revocation proceeding, he admitted several violations, yielding a Guidelines policy-statement range of 6–12 months but a statutory maximum of 24 months imprisonment.

Key issues. The appeal centered on:

• Procedural reasonableness: Whether the district court impermissibly relied on retributive/punishment factors in § 3553(a)(2)(A), which § 3583(e) omits.
• Substantive reasonableness: Whether the 18-month upward variance was an abuse of discretion given the circumstances and the 6–12 month advisory range.

2. Summary of the Opinion

The Tenth Circuit affirmed. It held:

• Procedural challenge (plain error): No error occurred. Although the district court briefly referenced “promot[ing] respect for the law,” it immediately retracted that statement (“I take that back”) and grounded the sentence in permissible § 3583(e) considerations—deterrence, protection of the public, and treatment/training needs.
• Substantive challenge: The upward variance was reasonable in light of Yazzie’s repeated noncompliance and recidivism; prior shorter revocation sentences had failed to deter him.

3. Analysis

3.1 Precedents Cited

3.2 Legal Reasoning

A. Preservation and the path to plain-error review

Because Yazzie did not object at sentencing to the alleged reliance on § 3553(a)(2)(A), the court treated the claim as unpreserved. Relying on United States v. Leffler and United States v. Chavez-Morales, it nevertheless considered plain error after Yazzie developed a plain-error argument in his reply brief in response to the government’s waiver contention.

B. The forbidden factor and the “actual reliance” inquiry

Under § 3583(e), a district court must consider only a subset of § 3553(a); critically, it omits § 3553(a)(2)(A) (seriousness of the offense, promoting respect for the law, and just punishment). After Esteras v. United States, revocation courts may not use retribution as a purpose.

Applying Esteras on plain error, the panel asked whether it was “clear” or “obvious” the district court actually relied on § 3553(a)(2)(A), “either expressly or by unmistakable implication.” It found the opposite for two record-based reasons:

• The judge corrected the prohibited rationale in real time. The district court began to say the sentence was warranted “to promote respect for the law” but immediately stated, “I take that back,” and then articulated permissible grounds: deterrence, protecting the public, and enabling education/vocational training and substance abuse treatment (i.e., § 3553(a)(2)(B), (C), (D)).
• References to the underlying sex offense served permissible public-safety logic. The district court’s remark that the underlying sex offense was serious was tied to concerns about ongoing noncompliance—especially failure to register—and thus related to deterrence/incapacitation rather than retribution, consistent with Esteras’ explanation that the “nature and circumstances of the offense” can be relevant to permitted purposes even though it cannot be used for retributive focus.

Because the first plain-error prong (existence of error) failed, the panel did not reach the remaining prongs, citing United States v. Wireman.

C. Substantive reasonableness and the upward variance

The advisory revocation range was 6–12 months (Grade B, criminal history category II). The district court imposed 18 months—an upward variance of six months above the top of the range, but still below the 24-month statutory maximum.

The panel upheld the sentence under abuse-of-discretion review, applying Gall v. United States (variance must be justified) and emphasizing:

• Repeated violations and recidivism: the judge found Yazzie violated the law “every chance” he had, and prior revocation sentences—including an above-range 13-month sentence—failed to deter.
• Public protection: the judge characterized Yazzie as a “danger to the community,” pushing upward on the sentence selection.
• No “benchmarking” to the original prison term: the panel rejected Yazzie’s suggestion that an 18-month revocation sentence was suspect because his original prison term was 36 months, noting the incorporated § 3553(a) factors do not require comparison to the original term as a measure of revocation reasonableness.

3.3 Impact

Although designated as nonbinding, United States v. Yazzie is likely to be cited for persuasive value in three practical ways:

• Record management after Esteras: It illustrates how a district court can avoid reversible error if it inadvertently references § 3553(a)(2)(A) but promptly retracts and clearly states permissible § 3583(e) purposes.
• Permissible use of “seriousness” language: The decision reinforces that references to the underlying offense’s seriousness are not automatically retributive in revocation—if they are linked to deterrence, incapacitation, or rehabilitation (e.g., the public-safety stakes of registration compliance).
• Upward variances for persistent noncompliance: The case underscores that repeat revocations and failure of prior sanctions are powerful justifications for modest upward variances, especially when framed in deterrence and community protection.

4. Complex Concepts Simplified

• Supervised release revocation (18 U.S.C. § 3583(e)): After prison, a defendant must follow conditions. If violated, the judge can revoke supervised release and impose prison again—but must use the factors Congress listed in § 3583(e).
• § 3553(a)(2)(A) (“retribution”) vs. other purposes:
  • Retribution = punishment because the conduct deserves it (“just punishment,” “seriousness,” “promote respect for the law”).
  • Deterrence = discouraging future misconduct.
  • Incapacitation = protecting the public by restricting the defendant’s ability to reoffend (e.g., imprisonment).
  • Rehabilitation = treatment/training to reduce future offending.
  In revocation sentencing, Congress excluded retribution as a purpose.
• Procedural vs. substantive reasonableness:
  • Procedural asks whether the judge used the right legal rules and adequately explained the sentence.
  • Substantive asks whether the sentence length is within the range of reasonable choices given the facts and permissible factors.
• Plain-error review: If the defendant did not object in the district court, the appellate court will reverse only for especially clear mistakes. After Esteras, the key question is whether it’s clear/obvious the sentencing judge actually relied on forbidden retribution—not merely whether the judge uttered a prohibited phrase.

5. Conclusion

United States v. Yazzie applies Esteras v. United States to affirm an above-Guidelines revocation sentence where the sentencing judge briefly referenced a forbidden retributive concept but immediately retracted it and grounded the sentence in permissible § 3583(e) purposes—deterrence, protection of the public, and rehabilitative needs. On substance, the opinion underscores that repeated violations and failure of prior sanctions can justify an upward variance, and that revocation reasonableness is not measured by comparison to the length of the original prison term.