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March 29, 2023

Tenth Circuit deepens split over considering retribution in revocation of federal supervised release

In this post a few weeks ago, I flagged a recent Congressional Research Service document which fully detailed a jurisprudential divide among the circuits over justifications for supervised release revocation.  As that document detailed: 

The federal appeals courts disagree as to whether, and to what extent, retribution may justify the revocation of supervised release in light of this statutory omission. On one side of the divide, the U.S. Courts of Appeals for the First, Second, Third, Sixth, and Seventh Circuits have held that federal courts may consider retribution in making revocation decisions. On the other side, the Fourth, Fifth, and Ninth Circuits have concluded that courts either may not consider retribution in these decisions at all or may consider it only to a limited degree.

Notably, yesterday a Tenth Circuit panel jumped into the action and agreed with the minority of other circuit via US v. Booker, No. 22-7000 (10th Cir. March 28, 2023) (available here). Here is how the 17-page opinion in Booker gets started:

After Donald Joe Booker, Jr. repeatedly violated the terms of his supervised release, the district court revoked his supervision and sentenced him to twenty-four months in prison, the statutory maximum.  For the first time on appeal, Mr. Booker argues that the district court erroneously based his sentence for violating supervised release on retribution whereas the statute governing the revocation of supervised release implicitly prohibits considering retribution.  See 18 U.S.C. § 3583(e).

We review Mr. Booker’s sentence for plain error.  Clarifying the scope of 18 U.S.C. § 3583(e), we hold that district courts may not modify or revoke a term of supervised release based on the need for retribution.  Because the district court quoted from a § 3553(a) sentencing factor representing retribution, we conclude that the district court erred. But even assuming this error was plain, Mr. Booker has not shown that it affected his substantial rights because we conclude there is no reasonable probability that his sentence would have been shorter had the court not erred. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we AFFIRM Mr. Booker’s twenty-four-month sentence.

Because of the plain error issue, this new Booker case would likely not make a good vehicle for SCOTUS to resolve this deep circuit divide over supervised release decision-making. (And, as a silly aside, I certainly would not be keen to have another major "Booker" sentencing ruling.)  But, given US Sentencing Commission data showing over 20,000 supervised release violation hearings taking place every year, there are on average nearly 100 federal defendants at least potentially impacted by this jurisprudential divide every single day in federal courts.  SCOTUS really should resolve this matter sooner rather than later if we think some semblance of equal justice is of importance in our federal criminal sentencing systems.

March 29, 2023 at 10:43 AM | Permalink


Please don't overlook the Felix Booker suppression of evidence decision, where the Sixth Circuit reversed the District Court's denial of the Motion to Suppress Evidence, where a Tennessee E. R. physician gave drugs to a detainee brought from the jail by Deputy Sheriffs, which complete paralyzed his body, so that he could locate and remove a 5 ounce crack rock (about the size of a golf ball) from the defendant's rectum. See, United States v. Felix Booker, 728 F.3d 535 (6th Cir. 2013). Felix Booker was a passenger in a car pulled over for a minor traffic stop, when he was arrested. The District Judge relied on the fact that the 4th Amendment only applies to state law actors, and this drug induced rectal search was performed by a private physician in an E.R. Because more than 5 grams of crack was involved, Booker received a 10-year mandatory minimum sentence. In reversing, the Sixth Circuit found that the physician had been "de facto deputized" by the Deputy Sheriffs, who had requested that the perform the search that located and removed the crack rock. As a result of the Sixth Circuit's decision, the defendant's conviction was vacated, the Motion to Suppress was granted and the Indictment was dismissed. Subsequently, the defendant, Booker, sued the Deputy Sheriffs and the deputized E.R. physician for violating his civil rights under color of law. Later, the E.R. physician was Federally prosecuted for illegally possessing 26 varieties of marijuana, narcotics and propofol in his home. Just too many BOOKER opinions to keep them all straight.

Posted by: Jim Gormley | Mar 29, 2023 1:19:03 PM

Gormley - WOW - just wow...that's a Dateline or 48hrs case right there...

Posted by: atomicfrog | Mar 29, 2023 1:35:48 PM

Jim Gormley --

Just what everyone wants -- a doctor on pot. The procedure might have been legally problematic, but at least it was grooooooooooooovy.

Posted by: Bill Otis | Mar 30, 2023 4:42:10 AM

"doctor on pot." Not a good thing, but neither are AUSAs and Judges who are prescription pill addicts.

Posted by: fluffyross | Mar 30, 2023 11:01:52 AM

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