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.