United States v. Booker.

No. 22-7000. 3/28/2023. E.D.Okla. Judge Ebel. Supervised Release—Probation Violation—Revocation—Need for Retribution.

March 28, 2023

Booker repeatedly violated the terms of his supervised release, and probation officers initiated revocation proceedings. Booker admitted to the violations. In sentencing him, the district court referred to the need to “promote respect for the law, and provide just punishment for the offense.” The court revoked his supervision and sentenced him to 24 months in prison, the statutory maximum.

On appeal, Booker argued that the district court’s reference to the need for retribution was reversible error because 18 USC § 3583(e), the statute governing revocation of supervised release, implicitly prohibits considering retribution. Here, the district court quoted from a § 3553(a) sentencing factor representing retribution. However, § 3553(a) applies to initial sentencing but does not apply to modification or revocation proceedings because § 3583(e) implicitly forbids consideration of retribution when modifying or revoking a term of supervised release. Accordingly, the district court erred by revoking Booker’s term of supervised release based on the need for retribution. But the bulk of the sentencing colloquy was focused on permissible considerations, and the district court did not emphasize its reliance on an impermissible factor when sentencing Booker. Therefore, even assuming this error was plain, Booker failed to show that it affected his substantial rights because there is no reasonable probability that his sentence would have been shorter had the court not erred.

The sentence was affirmed.