Second Circuit Clarifies Revocation Sentencing: Undisputed Probation Facts and Similarity to Prior Offense Can Support an Upward Variance; Retribution for the Underlying Conviction Remains Off-Limits Post‑Esteras

Court: U.S. Court of Appeals for the Second Circuit (Summary Order—nonprecedential)

Case: United States v. De Jesus‑Melendez, No. 24‑2067 (2d Cir. Oct. 28, 2025)

Introduction

This appeal arises from a revocation of supervised release and the imposition of a one-year prison term—an above-Guidelines sentence by two months over the high end of the advisory range—after the defendant, Brian Xavier De Jesus‑Melendez, admitted to a violation premised on a state gun offense. The district court emphasized the similarity between the violation conduct (possession of a loaded firearm with oxycodone tablets) and the conduct underlying the defendant’s prior federal conviction under 18 U.S.C. § 924(c). On appeal, the defendant challenged the procedural reasonableness of the revocation sentence, arguing that the district court inadequately explained its modest upward variance and improperly relied on unadmitted allegations in the Probation Department’s violation report.

The Second Circuit (Leval, Sullivan, and Kahn, JJ.) affirmed. Reviewing for plain error because the defendant did not object below, the court held that the district court sufficiently articulated a permissible rationale—deterrence, protection of the public, and the nature and circumstances of the violation—to justify the two‑month upward variance, and permissibly relied on undisputed information contained in the probation violation report. The panel further explained that the Supreme Court’s recent decision in Esteras v. United States does not bar a court, at revocation, from referencing the prior conviction to support deterrence and public-safety rationales, so long as retribution for the underlying conviction is not the basis for punishment.

While issued as a nonprecedential summary order, the decision meaningfully clarifies day-to-day practice in revocation sentencings in the Second Circuit on three fronts: (1) what suffices to justify a modest upward variance; (2) what factual sources a court may rely on without additional fact-finding; and (3) how to navigate Esteras’s limit on retribution at supervised-release revocations.

Summary of the Opinion

Standard of review: Because the defendant did not raise his procedural objections at sentencing, the court reviewed only for plain error under Rule 52(b).
Adequate explanation for the upward variance: The district court’s reasons—especially the similarity between the violation conduct and the prior § 924(c) offense, and the need for deterrence and public protection—were more than sufficient to justify a two‑month upward variance over the high end of the 4–10 month advisory range.
Use of probation report facts: It was proper to rely on the violation report’s description (loaded handgun and oxycodone) because the defendant did not dispute those facts; sentencing courts have broad discretion to consider reliable information from varied sources.
Aldeen distinguished: Unlike in United States v. Aldeen, the district court here did not rely on conduct tied to a specification that was not violated, nor on unsourced information. The relevant facts were undisputed and traced to a police report.
Esteras argument rejected: Invoked for the first time through a Rule 28(j) letter, the argument failed. Esteras addressed only whether § 3583(e) bars considering retribution for the underlying conviction. Here, the district court referenced the prior conviction solely to support deterrence and public-protection goals, not retribution.
Disposition: Judgment affirmed.

Analysis

Procedural Posture and Standard of Review

Because the defendant did not object at sentencing, he was required to show plain error. Under Federal Rule of Criminal Procedure 52(b), plain-error review asks: (1) Was there an error? (2) Was it plain? (3) Did it affect substantial rights? and (4) Should the appellate court exercise discretion to correct it because it seriously affects the fairness, integrity, or public reputation of judicial proceedings. The panel resolved the appeal at step one—finding no error—thus the challenge failed at the threshold.

The Supreme Court’s decision in Gall v. United States sets the baseline for procedural reasonableness: a sentencing court must (i) calculate and consider the applicable Guideline or policy statement range, (ii) explain the sentence, especially if deviating from that range, and (iii) avoid resting the sentence on clearly erroneous facts. The panel held these requirements were satisfied.

Adequacy of the Explanation for the Upward Variance

The district court imposed 12 months, two months over the high end of the 4–10 month advisory revocation range. The court emphasized that the violation conduct—possession of a loaded firearm and oxycodone—was “very similar, if not identical” to the conduct underlying the prior § 924(c) conviction. That similarity matters because it speaks directly to the nature and circumstances of the violation and the defendant’s danger to the community, as well as the need for specific deterrence: the five-year prior sentence apparently did not deter the same or similar conduct, so “the message has not gotten through.”

Under Gall, the degree of explanation required scales with the magnitude of the variance. Here, a modest two‑month variance above the high end of the range requires less extensive justification than a major variance. The court’s articulated aims—deterrence and protection of the public—are squarely permissible purposes at revocation under 18 U.S.C. § 3583(e) (which imports certain, but not all, § 3553(a) factors). The panel therefore found the explanation “more than sufficient.”

Use of Probation Report Facts Without Additional Findings or a Hearing

The defendant argued that the district court relied on unadmitted allegations (e.g., that the firearm was loaded and drugs were present) and should have made additional factual findings. The panel rejected this for two reasons:

Broad information latitude at sentencing: Sentencing courts may consider a wide range of information so long as it has sufficient indicia of reliability. The order cites United States v. Watts (sentencing courts may consider various information, even acquitted conduct) and Concepcion v. United States (recognizing the sentencer’s broad discretion over the kinds and sources of information).
Undisputed and sourced facts: The violation report’s account of a loaded handgun and oxycodone was undisputed at sentencing. Defense counsel confirmed on the record that he did not contest the court’s characterization of the severity of the violation. The report also traced the facts to a police report, addressing the concern identified in Aldeen about unsourced information.

Given the absence of any factual dispute and the presence of a reliable source, the district court was not required to convene an evidentiary hearing “that no one requested to resolve factual questions that nobody asked.” This also distinguishes United States v. Aldeen, where the court relied on conduct tied to a specification not found violated and on information with no identified source.

The Esteras Question: Permissible Purposes at Revocation and How to Reference the Prior Conviction

Through a Rule 28(j) letter, the defendant invoked the Supreme Court’s decision in Esteras v. United States to argue that the district court impermissibly considered retribution (a § 3553(a)(2)(A) factor) at revocation, contrary to § 3583(e). The panel rejected the argument, explaining that Esteras “address[ed] only whether § 3583(e) precludes the court from considering retribution for the underlying criminal conviction.” In other words, the revocation sentence may not be justified by retribution for the prior federal offense that produced supervised release in the first place.

Here, however, the district court’s reference to the prior § 924(c) conviction served a different function: to demonstrate that the defendant had reengaged in closely similar conduct and that a stronger sentence was necessary to deter future violations and protect the public. Those are permissible § 3583(e) considerations (which incorporate deterrence and protection of the public but omit retribution). Accordingly, under Esteras as described by the panel, no error—let alone plain error—occurred.

Precedents Cited and Their Influence

Gall v. United States, 552 U.S. 38 (2007): Anchors the procedural reasonableness inquiry. A court must explain its sentence—especially deviations from advisory ranges—and avoid reliance on clearly erroneous facts. The panel applied Gall to hold the explanation here sufficient for a minor upward variance.
United States v. Watts, 519 U.S. 148 (1997): Confirms sentencing courts’ broad latitude to consider varied information, even conduct not resulting in conviction, provided the information is reliable. That principle supports looking to undisputed facts in a probation violation report.
Concepcion v. United States, 597 U.S. 481 (2022): Although addressing First Step Act resentencing, Concepcion reaffirms that a sentencing judge is “largely unlimited” regarding the types and sources of information considered. The panel invoked this to validate use of the violation report and police report.
United States v. Aldeen, 792 F.3d 247 (2d Cir. 2015): In Aldeen, the district court erred by relying on conduct relating to a condition not found violated and on unsourced information. The panel distinguished Aldeen: here, the facts were undisputed and sourced to a police report, and they concerned the very specification the defendant admitted violating.
Esteras v. United States, 145 S. Ct. 2031 (2025): As described by the panel, Esteras holds that § 3583(e) precludes considering retribution for the underlying conviction when revoking supervised release. It does not bar courts from referencing the prior conviction for permissible purposes such as deterrence and protection of the public. The district court’s rationale fit squarely within those permissible aims.

Impact and Practice Implications

Although nonprecedential, this summary order provides practical guidance for revocation sentencings in the Second Circuit:

Modest upward variances can rest on offense similarity and recidivist signaling: Where violation conduct mirrors the underlying offense, a court may see that as strong evidence of recidivism risk and need for enhanced deterrence and public protection. A succinct but concrete explanation can suffice for a small variance.
Undisputed probation facts carry weight: When counsel affirmatively does not dispute the violation report’s factual account—especially when sourced to official reports—courts may rely on it without additional fact-finding or hearings. Defense counsel wishing to limit the factual record should promptly lodge objections, request an evidentiary hearing, or both.
Post‑Esteras boundaries: Revocation sentencing must avoid retributive rationales tied to the underlying conviction. But judges may still reference the prior offense to explain why deterrence and incapacitation are necessary. Sentencing remarks should be framed accordingly.
Record-building matters: Probation should identify sources (e.g., police reports) for factual summaries; courts should note whether facts are disputed; defense should clearly state any factual or legal objections to preserve issues beyond plain-error review.
Consecutive terms at revocation: The court ordered the revocation term to run consecutive to the undischarged state sentence, consistent with the general policy of imposing separate punishment for violation conduct. Practitioners should be prepared to address consecutiveness explicitly.

Complex Concepts Simplified

Supervised release: A post‑prison monitoring term with conditions. Violations can result in revocation and additional imprisonment.
Revocation sentencing factors: Under 18 U.S.C. § 3583(e), courts consider certain § 3553(a) factors (e.g., nature and circumstances; history and characteristics; deterrence; protection of the public; rehabilitation) but may not rely on retribution (the “just punishment” factor in § 3553(a)(2)(A)).
Advisory revocation ranges: Chapter 7 policy statements of the Sentencing Guidelines provide advisory ranges for revocation based on the Grade of violation and criminal history. Courts must consider them but are not bound by them.
Upward variance: A sentence above the top of the advisory range. The judge must provide reasons, with more explanation required for larger variances.
Plain error review: A demanding standard applied when an objection was not preserved. The appellant must show a clear error that affected substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Use of probation violation reports: Sentencing courts may rely on reliable hearsay. If the report identifies its sources (e.g., police reports) and the facts are not disputed, no evidentiary hearing is required.
Rule 28(j) letter: A mechanism allowing parties to notify the appellate court of supplemental authorities or developments after briefing. Arguments first raised via 28(j) generally face heightened hurdles, especially under plain-error review.
Consecutive sentences: A revocation sentence may run consecutive to an undischarged sentence for separate conduct, reflecting that the violation is a distinct breach of the court’s trust.

Conclusion

The Second Circuit’s summary order in United States v. De Jesus‑Melendez affirms a revocation sentence with a modest upward variance, underscoring three practical points. First, close similarity between violation conduct and the original offense, coupled with articulated goals of deterrence and public protection, can adequately justify a small upward variance. Second, courts may rely on undisputed, sourced factual summaries in probation violation reports without additional hearings or findings. Third, post‑Esteras, revocation courts must avoid a retributive rationale for the underlying conviction but may still reference that conviction to support permissible aims like deterrence and public safety.

Although nonprecedential, the order offers clear, usable guidance for district courts, probation officers, and practitioners: build a sourced and undisputed record; object and request hearings where facts matter; and frame revocation justifications in terms of deterrence, incapacitation, and the nature and circumstances of the violation—not retribution for the prior offense. The decision thus contributes to a consistent and legally sound approach to revocation sentencing within the Second Circuit.