Esteras v. United States

P R E L I M I N A R Y P R I N T
Volume 606 U. S. Part 1
Pages 185–225
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 20, 2025
REBECCA A. WOMELDORF
reporter of decisions
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OCTOBER
TERM, 2024
185
Syllabus
ESTERAS v. UNITED STATES
certiorari
to the united states court of appeals for
the sixth circuit
No. 23–7483. Argued February 25, 2025—Decided June 20, 2025*
Edgardo Esteras pleaded guilty to conspiring to distribute heroin, and the
District Court sentenced him to 12 months in prison followed by a 6-
year term of supervised release. While on supervised release, Esteras
was arrested and charged with domestic violence and other crimes.
The District Court revoked Esteras's supervised release and ordered 24
months of reimprisonment, explaining that Esteras's earlier sentence
had been “rather lenient” and that his revocation sentence must “pro-
mote respect for the law,” a consideration enumerated in 18 U. S. C.
§ 3553(a)(2)(A). The Sixth Circuit affrmed, holding that a district court
may consider § 3553(a)(2)(A) when revoking supervised release.
Held: A district court considering whether to revoke a defendant's term
of supervised release may not consider § 3553(a)(2)(A), which covers
retr ibuti on v is-à-v is the defendant's underlyi ng cr iminal offense.
Pp. 191–204.
(a) In determining the appropriate sentence for a federal defendant,
a district court must consider 10 factors set forth in § 3553(a). Among
those factors is § 3553(a)(2)(A), which references “the need for the sen-
tence imposed” “to refect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the offense.”
This provision speaks to the retributive purpose of punishment.
A judge who imposes a term of imprisonment may also impose a post-
imprisonment term of supervised release. Section 3583(c) enumerates
the factors that a court must consider when deciding to impose super-
vised release. Eight of the ten § 3553(a) factors are listed. Signifcant
here, § 3583(c) excludes § 3553(a)(2)(A), which covers retribution vis-à-
vis the defendant's underlying criminal offense. When a court decides
whether to revoke a defendant's term of supervised release, § 3583(e)
provides that the same eight factors apply. So the question is this: In
determining whether to revoke supervised release, may a district court
account for these omitted factors—and specifcally § 3553(a)(2)(A)? Es-
teras says no; the Government says yes. Pp. 191–195.
*Together with Jaimez, fka Watters v. United States and Leaks v. United
States, also on certiorari to the same court (see this Court's Rule 12.4).
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186 ESTERAS
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Syllabus
(b) The Court agrees with Esteras. District courts cannot consider
§
3553(a)(2)(A) when revoking supervised release. That conclusion fol-
lows from the well-established canon of statutory interpretation—“ex-
pressio unius est exclusio alterius”—which means that expressing one
item of an associated group excludes another item not mentioned. See
Chevron U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80. While Congress
elsewhere set forth 10 factors that must generally inform a district
court's sentencing decisions, it provided in § 3583(e)—the provision gov-
erning the revocation of supervised release—that courts must consider
only 8 of those 10 factors. The natural implication is that Congress did
not intend courts to consider the other two factors, including
§ 3553(a)(2)(A).
The statutory structure confrms this negative inference. Neighbor-
ing provisions governing the imposition and revocation of other kinds
of sentences instruct courts to consider all the § 3553(a) factors. But
for supervised release—and supervised release only—Congress omitted
§ 3553(a)(2)(A). This is a distinction with a difference. And Congress's
decision to exclude retribution from the calculus also comports with su-
pervised release's role in the criminal justice scheme. Supervised re-
lease “is not a punishment in lieu of incarceration.” United States v.
Granderson, 511 U. S. 39, 50. Rather, it “fulflls rehabilitative ends”
and “provides individuals with postconfnement assistance.” United
States v. Johnson, 529 U. S. 53, 59–60. So when a defendant violates
a condition of supervised release, courts must consider the forward-
looking sentencing ends, but may not consider the backward-looking
purpose of retribution.
The Court has twice interpreted the omission of § 3553(a)(2)(A) from
the provision governing the imposition of supervised release to mean
that district courts may not consider that factor. See Tapia v. United
States, 564 U. S. 319; Concepcion v. United States, 597 U. S. 481. Al-
though Tapia and Concepcion both deal with the imposition of super-
vised release under § 3583(c), the same reasoning applies to revocation
under § 3583(e): the omission of § 3553(a)(2)(A) means that courts may
not consider it. Pp. 195–197.
(c) The Government's counterarguments are unpersuasive. The Gov-
ernment reads the exclusion of § 3553(a)(2)(A) from § 3583(e) to mean
that district courts must consider enumerated factors and need not (but
may) consider unenumerated ones. Given sentencing judges' discre-
tion, the Government argues, Congress would have been more explicit
had it intended to foreclose the consideration of retributive aims when
revoking supervised release. But what Congress said is clear: The
itemized list in § 3583(e) is exhaustive and supplies the entire universe
of factors courts may consider. And the Government's reading trivial-
izes the omission of § 3553(a)(2)(A): As the Government recognizes, a
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187
Syllabus
court may “consider” an enumerated factor but give it no weight. Yet
there
is negligible difference between saying that a court must consider
a given factor (but may give it no weight) and saying that a court may
consider a given factor (if the court so chooses).
Next, the Government argues that Esteras's reading is unworkable
because considering other enumerated factors—such as “the nature and
circumstances of the offense” under § 3553(a)(1)—will necessarily imply
consideration of the retributive principles captured by § 3553(a)(2)(A).
While the Government asks how a court may consider the nature and
circumstances of the offense without also considering the retributive
principles captured by § 3553(a)(2)(A), the answer is straightforward.
Courts may consider the offense's nature and circumstances to inform
the considerations set forth in §§ 3553(a)(2)(B), (C), and (D)—deterrence,
incapacitation, and rehabilitation. But courts cannot consider them as
relevant to § 3553(a)(2)(A)'s retributive focus.
Finally, the Government interprets § 3583(g), which mandates revoca-
tion in certain circumstances, as subject to the full list of § 3553(a) fac-
tors. And it would be anomalous, the Government says, if courts could
consider retribution in mandatory revocations under § 3583(g) but not
in discretionary revocations under § 3583(e)(3). The correct reading of
§ 3583(g) does not affect the Court's analysis. That § 3583(e) might op-
erate differently from § 3583(g) is no reason to disregard § 3583(e)'s plain
meaning. Pp. 197–202.
(d) When appellate courts review a claim that the district court has
impermissibly relied on § 3553(a)(2)(A), much will turn on whether the
defendant has properly objected to the district court's impermissible
reliance on § 3553(a)(2)(A). If not, the defendant's appeal will be gov-
erned by plain-error review. But if a court considers retribution for
the original offense over the defendant's objection, and the error was not
harmless, then the court of appeals should vacate the order and remand
for the court to apply the correct standard. None of this turns the
Court's reading of § 3583(e) into a “substance-free reverse magic-words
requirement,” as the Government suggests. Brief for United States 37.
The Government confates the proper interpretation of § 3583(e) with an
appellate court's ability to enforce that interpretation. Pp. 202–204.
88 F. 4th 1163, 95 F. 4th 1004, vacated and remanded.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Thomas, Kagan, and Kavanaugh, JJ., joined, and in which
Sotomayor and Jackson, JJ., joined as to all but Part II–B. Sotomayor,
J., fled an opinion concurring in part and concurring in the judgment, in
which Jackson, J., joined, post, p. 204. Jackson, J., fled an opinion con-
curring in part and concurring in the judgment, post, p. 206. Alito, J.,
fled a dissenting opinion, in which Gorsuch, J., joined, post, p. 208.

188 ESTERAS
v. UNITED STATES
Opinion of the Court
Christian J. Grostic argued the cause for petitioners.
W
ith him on the briefs were Stephen C. Newman, Lori B.
Riga, Jeffrey B. Lazarus, Catherine Adinaro Shusky, and
Kevin M. Schad.
Masha G. Hansford argued the cause for the United
States. With her on the brief were Solicitor General Pre-
l ogar, Pr inc ipa l De pu ty Assistan t At t o r ney Gene ra l
Wible, Deputy Solicitor General Feigin, and Mahogane D.
Reed.†
Justice Barrett delivered the opinion of the Court.
A criminal sentence may include both time in prison and
a term of supervised release. 18 U. S. C. § 3583(a). Super-
vised release comes with conditions—for instance, the de-
fendant must refrain from committing another crime.
§ 3583(d). If the defendant violates one of these conditions,
then the district court may revoke the term of supervised
release and require reimprisonment. But a court may do
so only “after considering ” an enumerated list of sentencing
factors: those “set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).” § 3583(e).
Conspicuously missing from this list is § 3553(a)(2)(A), which
directs a district court to consider “the need for the sentence
imposed” “to refect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment for
the offense.” The Sixth Circuit held that a district court
may consider that factor nonetheless.
We disagree. Congress's decision to enumerate most of
the sentencing factors while omitting § 3553(a)(2)(A) raises a
strong inference that courts may not consider that factor
when deciding whether to revoke a term of supervised re-
lease. This inference is consistent with both the statutory
structure and the role that supervised release plays in the
sentencing process. Accordingly, we vacate the judgments
of the Sixth Circuit and remand for further proceedings.
†Jacob Schuman, pro se, and Ed Spreha fled a brief for Criminal Law
Scholars as amici curiae urging reversal.
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Opinion of the Court
I
In
2018, Edgardo Esteras pleaded guilty to conspiring to
distribute heroin. Varying downward from the 15-to-21-
month sentencing range, the District Court sentenced him
to 12 months in prison, to be followed by a 6-year term of
supervised release.
When Esteras completed his term of imprisonment, his
period of supervised release began. Three years in, the pro-
bation offce notifed the District Court that Esteras had
been arrested. According to the mother of his children, Es-
teras had threatened to kill her and had fred three rounds
into her vehicle. Esteras was charged in municipal court
with domestic violence, aggravated menacing, and criminal
damaging, although the charges were ultimately dismissed
at the request of the victim.
The District Court held a revocation hearing, at which it
found that Esteras had violated the conditions of his super-
vised release. The District Court remarked that Esteras
was “no stranger to law violations and no stranger to federal
court” and that his previous drug sentences had been “rather
lenient.” App. 96a. The District Court revoked his super-
vised release and ordered 24 months of reimprisonment, an
upward variation from the advisory 6-to-12-month range,
with three more years of supervised release to follow.
At this point, Esteras's counsel objected, arguing that the
District Court had impermissibly considered “the factor in
Section 3553(a)(2)(A).” Id., at 105a. While Esteras's coun-
sel lodged his objection for the record, he recognized that
Sixth Circuit precedent allows district courts to consider
§ 3553(a)(2)(A) when revoking a term of supervised release.
See United States v. Lewis, 498 F. 3d 393, 399–400 (2007).
The District Court in turn acknowledged that part of its de-
cision “certainly [was] the need for the sentence imposed, to
promote respect for the law.” App. 105a. In a subsequent
written order, the District Court explained that it had “con-
sidered the factors and conditions for sentencing listed in 18
U. S. C. § 3553(a)” and had imposed the term of reimprison-
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190 ESTERAS
v. UNITED STATES
Opinion of the Court
ment in part to “promote respect for the law.” Id., at
115a
–116a.
The Sixth Circuit affrmed, providing two justifcations for
its view that district courts may consider § 3553(a)(2)(A)
when revoking a term of supervised release. See 88 F. 4th
1163 (2023). First, § 3583(e) does not say “that the court
may consider `only' those factors” specifcally enumerated,
so there was no indication that Congress meant to displace
the “considerable discretion” that district courts typically
enjoy “over supervised-release decisions.” Id., at 1167.
Second, a rule prohibiting district courts from considering
§ 3553(a)(2)(A) would be unworkable. As the panel saw it,
“the purportedly forbidden considerations mentioned in
§ 3553(a)(2)(A) tend to be `essentially redundant' with the
permitted ones,” so “[t]o think about the one requires the
judge to think about the other.” Ibid. (quoting Lewis, 498
F. 3d, at 400).
The circuits are divided as to whether district courts may
consider § 3553(a)(2)(A) when revoking a term of supervised
release.
1
We granted certiorari to resolve this split. 604
U. S. 997 (2024).
2
1
In addition to the Sixth Circuit, the First, Second, and Third Circuits
have held that district courts may consider § 3553(a)(2)(A). See United
States v. Vargas-Dávila, 649 F. 3d 129, 131–132 (CA1 2011); United States
v. Williams, 443 F. 3d 35, 47–48 (CA2 2006); United States v. Young, 634
F. 3d 233, 238–242 (CA3 2011). By contrast, the Fourth, Ninth, and Tenth
Circuits have held that a court may not consider § 3553(a)(2)(A). See
United States v. Crudup, 461 F. 3d 433, 439 (CA4 2006); United States v.
Miqbel, 444 F. 3d 1173, 1182 (CA9 2006); United States v. Booker, 63 F. 4th
1254, 1259–1260 (CA10 2023). The Fifth and Seventh Circuits have taken
intermediate positions. See United States v. Sanchez, 900 F. 3d 678, 684,
and n. 5 (CA5 2018) (while § 3553(a)(2)(A) is an impermissible factor for a
district court to consider, “the forbidden factor must be `dominant' ” to
constitute reversible error); United States v. Clay, 752 F. 3d 1106, 1108–
1109 (CA7 2014) (allowing consideration of § 3553(a)(2)(A) if the district
court “relies primarily” on the enumerated factors).
2
Timothy Jaimez and Toriano Leaks joined Esteras's petition for certio-
rari. Jaimez and Leaks, like Esteras, argued that the District Courts
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Opinion of the Court
II
A
W
hen a district court sentences a federal defendant, the
judge may impose a term of imprisonment, a term of proba-
tion, or a fne. See § 3551(b). In determining the appro-
priate sentence, the court must consider certain factors set
forth in § 3553(a). Some are obvious: The court must con-
sider “the nature and circumstances of the offense,” “the his-
tory and characteristics of the defendant,” and “the kinds
of sentences available.” §§ 3553(a)(1), (3). Others require
courts to consider guidelines or policies issued by the Sen-
tencing Commission. §§ 3553(a)(4)–(5). And still others re-
fect discrete policy aims, such as “the need to avoid un-
warranted sentence disparities” among similarly situated
defendants and “the need to provide restitution to any vic-
tims of the offense.” §§ 3553(a)(6)–(7).
While all these factors are important, § 3553(a)(2) captures
the traditional heartland of criminal sentencing. It requires
courts to consider:
“the need for the sentence imposed—
“(A) to refect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment
for the offense;
“(B) to afford adequate deterrence to cr i mi na l
conduct;
“(C) to protect the public from further crimes of the
defendant; and
“(D) to provide the defendant with needed educa-
tional or vocational training, medical care, or other
correctional treatment in the most effective manner.”
“These four considerations—retribution, deterrence, inca-
pacitation, and rehabilitation—are the four purposes of sen-
in their revocation proceedings had improperly considered § 3553(a)(2)(A).
The Sixth Circuit held that these arguments were foreclosed by Esteras
and Lewis. See United States v. Jaimez, 95 F. 4th 1004, 1007 (2024);
United States v. Leaks, 2024 WL 2196795, *1 (Mar. 6, 2024).
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tencing generally.” Tapia v. United States, 564 U. S. 319,
325
(2011). They speak to the questions at the core of any
system of criminal justice: What sentence does the defendant
deserve? What sentence will deter criminal conduct in the
future? What sentence will protect the public? And what
sentence is most likely to help the defendant rehabilitate for
transition back into society?
A judge who imposes a term of imprisonment may—and
sometimes must—impose a postimprisonment term of super-
vised release. § 3583(a). “Supervised release is `a form of
postconfnement monitoring ' that permits a defendant a kind
of conditional liberty by allowing him to serve part of his
sentence outside of prison,” subject to conditions on his be-
havior. Mont v. United States, 587 U. S. 514, 523 (2019)
(quoting Johnson v. United States, 529 U. S. 694, 697 (2000)).
Some conditions are mandatory, such as requiring that the
defendant not commit additional crimes and, in most cases,
that the defendant submit to drug testing. § 3583(d). Oth-
ers are up to the discretion of the court. Ibid.
When a court “determin[es] whether to include a term of su-
pervised release,” as well as the length and conditions of such
a term, it must “consider the factors set forth in section
3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and
(a)(7).” § 3583(c). Only two of the § 3553(a) factors are ab-
sent from this list. The frst is § 3553(a)(2)(A), which requires
the court to consider the need for the sentence imposed to
“refect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense,” i. e.,
the retributive purposes of sentencing. The second is
§ 3553(a)(3), which requires the court to consider “the kinds of
sentences available.” When a court decides whether to re-
voke a defendant's supervised release, the very same subset of
§ 3553(a) factors—that is, all but two—applies. § 3583(e)(3).
3
3
The same list of factors also applies when a district court modifes the
terms of supervised release, such as by terminating supervised release
early, by extending the term of supervised release, or by altering the
conditions of supervised release. §§ 3583(e)(1)–(2), (4).
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Opinion of the Court
The reason for excluding § 3553(a)(3) from the list is self-
e
vident: When a district court decides whether to revoke a
term of supervised release, there is no need to consider “the
kinds of sentences available,” because supervised release is
the only matter at issue.
4
The exclusion of § 3553(a)(2)(A) is
more signifcant—and here, controversial. Esteras argues
that district courts cannot consider the retributive purpose
articulated in § 3553(a)(2)(A) when revoking supervised re-
lease. The Government insists that courts can consider it,
although they are not required to do so.
B
To see what is at stake, keep in mind that § 3553(a)(2)(A)
does not speak of retribution generally—it references the
need for the sentence “to refect the seriousness of the of-
fense” and to “provide just punishment for the offense.”
(Emphasis added.) In the context of a revocation hearing,
4
The dissent offers a different view of § 3553(a)(3). In its view, the
termination, extension, modifcation, and revocation of supervised release
are all different “kinds of ” sentences. Post, at 214 (opinion of Alito, J.).
The Government never makes this argument—and for good reason. To
begin, it is textually implausible. As the statute articulates, there are
three “kinds of sentences available” for an individual “found guilty of an
offense”: “a term of probation,” “a fne,” and “a term of imprisonment.”
§§ 3551(b)(1)–(3); § 3553(a)(3). In fact, a term of supervised release is not
itself a “sentence” at all; it is a component of a defendant's prison sentence.
See § 3583(a) (“The court, in imposing a sentence to a term of imprison-
ment . . . , may include as a part of the sentence a requirement that the
defendant be placed on a term of supervised release after imprisonment”
(emphasis added)). Thus, to the extent the dissent thinks that the termi-
nation, extension, modifcation, and revocation of supervised release are
di fferent “ ki nds of sentences avai lable” to the court, it is mistaken.
§ 3553(a)(3).
The dissent's interpretation is perplexing for another reason too: It
treats Congress's omission of § 3553(a)(3) from the set of factors that gov-
ern revocation proceedings as nothing more than an inexplicable drafting
error; under its view, not only may district courts consider § 3553(a)(3),
they must do so. See post, at 214 (a judge “must consider exactly what
is set out in § 3553(a)(3)”). Silence is an unusual way to convey such an
instruction.
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the “offense” is the underlying crime of conviction, not the
v
iolation of the supervised-release conditions. The opening
provision of Title 18's sentencing chapter clearly uses “of-
fense” to refer to a criminal conviction. See § 3551(a) (stat-
ing that the sentencing provisions apply to “a defendant who
has been found guilty of an offense described in any Federal
statute”). Yet conduct that constitutes a violation of super-
vised release “need not be criminal.” Johnson, 529 U. S.,
at 700; see, e. g., § 3583(g)(3) (mandating revocation when a
defendant fails to comply with drug testing imposed as a
condition of release). Furthermore, neighboring provisions
in § 3583 consistently use the word “offense” to refer to the
defendant's original crime of conviction, while using the
word “violation” to refer to the conduct that triggers revoca-
tion. Compare § 3583(e)(3) (referencing the “offense that
resulted in the term of supervised release”); § 3583(h) (“the
offense that resulted in the original term of supervised re-
lease”), with § 3583(d) (referencing a “violation of a condition
of supervised release”); § 3583(i) (same).
5
So the question is this: In determining whether to revoke
a defendant's term of supervised release (per § 3583(e)), may
a district court account for the need to exact retribution for
5
Because § 3553(a)(2)(A) speaks only to the “offense,” and “offense” here
can mean only the underlying criminal conviction, we address only
whether § 3583(e) precludes the court from considering retribution for the
underlying criminal conviction. “Offense” aside, the Government argues
that § 3553(a)(4)(B) and § 3553(a)(5) authorize courts to consider policy
statements issued by the Sentencing Commission that sound in retribution
for the violation of the conditions of the supervised release. See Brief
for United States 11, 34; § 3583(e) (requiring courts to consider § 3553(a)(4)
and § 3553(a)(5)). The Commission has adopted the view that “the sen-
tence imposed upon revocation [is] intended to sanction the violator for
failing to abide by the conditions of the court-ordered supervision.”
United States Sentencing Commission, Guidelines Manual ch. 7, pt. A,
intro. 3(b) (Nov. 2024); see also ibid. (in revocation proceedings, a court
may “sanction” an offender's “breach of trust”). We take no position on
whether this is a permissible consideration.
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Opinion of the Court
the defendant's underlying crime (per § 3553(a)(2)(A))? Es-
teras
says no; the Government says yes.
III
A
We agree with Esteras: District courts cannot consider
§ 3553(a)(2)(A) when revoking supervised release. This con-
clusion follows directly from the application of a well estab-
lished canon of statutory interpretation: “expressio unius est
exclusio alterius”—in plain English, “ `expressing one item
of [an] associated group or series excludes another left un-
mentioned.' ” Chevron U. S. A. Inc. v. Echazabal, 536 U. S.
73, 80 (2002) (quoting United States v. Vonn, 535 U. S. 55,
65 (2002); alteration in original). Here, § 3553(a) lays out 10
factors that inform a district court's sentencing decision.
6
Section 3583(e) provides that a district court may revoke a
term of supervised release “after considering ” 8 of these 10
factors. The natural implication is that Congress did not
intend for courts to consider the other two factors, § 3553(a)(2)
(A) and § 3553(a)(3). Indeed, the expressio unius canon has
particular force here because the § 3553(a) sentencing factors
constitute an “established series,” such that any “omission”
from that series necessarily “bespeaks a negative impli-
cation.” Chevron U. S. A. Inc., 536 U. S., at 81. And the fact
that Congress included almost the entire list makes the ex-
clusion of § 3553(a)(2)(A) and § 3553(a)(3) all the more glaring.
The statutory structure confrms this negative inference.
Neighboring provisions that govern the imposition and revo-
cation of sentences other than supervised release instruct
the court to consider all the factors in § 3553(a). For in-
stance, when imposing a term of probation, the court “shall
consider the factors set forth in [§] 3553(a) to the extent that
6
For those counting: the six factors enumerated in §§ 3553(a)(1), (3), (4),
(5), (6), and (7), plus the four fac tors separately enumerated i n
§§ 3553(a)(2)(A)–(D).
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they are applicable.” § 3562(a). And the court may revoke
such
a term “after considering the factors set forth in section
3553(a).” § 3565(a); see also § 3582(a) (same for imposition of
term of imprisonment); § 3572(a) (same for imposition of a
fne). So for supervised release—and for supervised release
only—Congress omitted § 3553(a)(2)(A). This, we think, is a
distinction with a difference. After all, our task is to “give
effect to, not nullify Congress' choice to include” that factor
“in some provisions but not others.” Gallardo v. Marstiller,
596 U. S. 420, 431 (2022).
Congress's decision to exclude retribution from the calcu-
lus also comports with the role of supervised release in our
current criminal justice scheme. Fines, probation, and im-
prisonment are a court's primary tools for ensuring that a
criminal defendant receives just deserts for the original of-
fense. Supervised release, by contrast, “is not a punishment
in lieu of incarceration.” United States v. Granderson, 511
U. S. 39, 50 (1994). Rather, it “fulflls rehabilitative ends”
and “provides individuals with postconfnement assistance.”
United States v. Johnson, 529 U. S. 53, 59–60 (2000). So
when a defendant violates the conditions of his supervised
release, it makes sense that a cour t must consider the
forward-looking ends of sentencing (deterrence, incapacita-
tion, and rehabilitation), but may not consider the backward-
looking purpose of retribution.
Finally, our conclusion is consistent with this Court's prec-
edent. We have twice interpreted the omission of § 3553(a)
(2)(A) from the provision governing the imposition of super-
vised release (§ 3583(c)) to mean that district courts may not
consider that factor when imposing supervised release. In
Tapia, we stated that, “when imposing a term of supervised
release,” “a court may not take account of retribution (the
frst purpose listed in § 3553(a)(2)).” 564 U. S., at 326.
7
So
7
The dissent suggests that when we said that “ `a court may not take
account of retribution,' ” we may have actually meant that “a judge, as a
matter of discretion, may choose not to take retribution into account.”
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too, in Concepcion v. United States, we remarked that “in
deter
mining whether to include a term of supervised release,
and the length of any such term, Congress has expressly pre-
cluded district courts from considering the need for retribu-
tion.” 597 U. S. 481, 494 (2022). Although Tapia and Con-
cepcion both deal with the imposition of supervised release
under § 3583(c), the same reasoning applies to the revocation
of superv ised release under § 3583(e): The omissi on of
§ 3553(a)(2)(A) from the list of factors means that courts may
not consider it.
Text, structure, and precedent all point in the same di-
rection: Congress's decision to exclude § 3553(a)(2)(A) from
§ 3583(e)'s list of sentencing factors means that district courts
cannot consider § 3553(a)(2)(A) when deciding whether to re-
voke supervised release.
B
We are unpersuaded by the Government's and the dissent's
counterarguments. First, the Government and the dissent
read the exclusion of § 3553(a)(2)(A) as supporting a different
inference—namely, that a district court must consider the
enumerated factors but need not consider the unenumerated
ones, such as § 3553(a)(2)(A). Because “sentencing judges
`enjo[y] discretion in the sort of information they may con-
sider,' ” the Government argues, Congress would have used
more explicit language had it wanted to foreclose courts from
considering retribution when revoking supervised release.
Concepcion, 597 U. S., at 491 (quoting Dean v. United States,
581 U. S. 62, 66 (2017); alteration in original). For example,
Congress could have said that courts may revoke supervised
release “after considering only” the enumerated factors.
Brief for United States 23; see also post, at 210–213 (Alito,
J., dissenting).
Post, at 220–221. We leave it to the reader to judge whether this is a
plausible interpretation.
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When interpretive disputes arise, it is easy to imagine how
Congress
could have drafted the statute to avoid them. But
Congress cannot anticipate (much less account for) every fu-
ture statutory skirmish—and even if it could, courts have no
authority to hold Congress to a “perfect as we see it” stand-
ard of drafting. On the contrary, we have “routinely con-
strued statutes to have a particular meaning ” even when
“Congress could have expressed itself more clearly.” Luna
Torres v. Lynch, 578 U. S. 452, 472 (2016). What Congress
said here gets its point across just fne: The itemized list in
§ 3583(e) is exhaustive. As we explained, the provision
allows district courts to consider all but two of the § 3553(a)
factors, and because one is inapplicable in this context
(§ 3553(a)(3)), § 3553(a)(2)(A) is the only consequential omis-
sion. So it makes sense to read § 3583(e) as supplying the
universe of factors that the district court can consider. And
while the Government is right that district courts generally
enjoy discretion over sentencing, see Brief for United States
21–22, Congress chose to limit that discretion here.
It makes much less sense to read § 3583(e) as the Govern-
ment does—that is, as listing only the factors that a court
must consider, while leaving room for the court to consider
an additional factor if it so chooses. This reading of § 3583(e)
trivializes the omission of § 3553(a)(2)(A). After all, on the
Government's view, a court may “consider” an enumerated
factor but give it no weight. Tr. of Oral Arg. 61. The dif-
ference between saying that a court must consider a given
factor (but may give it no weight) and saying that a court
may consider a given factor (if the court chooses) is negli-
g ible. Why wou ld Congress have bothered to exclude
§ 3553(a)(2)(A) from the list?
The dissent has no response to this point, so it instead
analogizes to different—and inapposite—contexts. For ex-
ample, the dissent says, suppose that a law clerk is directed
to complete a certain number of bench memos before a dead-
line; surely that instruction would not carry the inference
that the law clerk may not complete more work too. Post,
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at 211–212. But the important difference between that con-
text
and this one is that sentencing considerations, unlike
bench memos, can be zero sum: Adding a new consideration
to the mix reduces the role that the enumerated considera-
tions play. In fact, the new consideration might lead to a
different result altogether.
A play on the dissent's own analogy reveals its weak-
nesses. Imagine that a judge tells her hypothetical law
clerk to prepare a bench memo with a recommendation
formed “after considering ” statutory text, context, and
structure, as well as any relevant precedent. Having looked
at these sources, the law clerk is inclined to recommend that
the judge reverse the court below. But the law clerk de-
cides to look elsewhere—say, to social science studies—and
she uses these sources to inform her recommendation. In
the end, she submits a memo recommending that the judge
vote to affrm the lower court's decision. According to the
dissent, the law clerk has obeyed her boss's instructions.
Needless to say, we disagree.
More to the point, the dissent never explains why Con-
gress omitted § 3553(a)(2)(A) from the list of considerations
applicable to a revocation proceeding. After all, in the dis-
sent's view, district courts will almost inevitably consider
that factor. See post, at 210, 214–217, 219–220, n. 7. So why
did Congress exclude it? In the dissent's view, the omission
is just hortatory: “Congress may have sought to encourage
sentencing courts to give greater weight to the remaining
purposes of sentencing.” Post, at 219, n. 7.
8
But omitting
consideration of § 3553(a)(2)(A) altogether would be an odd
8
Alternatively, the dissent posits that Congress may have understood
each of the three § 3553(a)(2)(A) factors to “apply in some, though not all,
hearings regarding the alteration of supervised release.” Post, at 219,
n. 7. Which hearings make the cut? Frankly, we are not sure. Some
parts of the dissent's lengthy footnote suggest all; others suggest none;
and still others suggest that it “depends on context.” Ibid. In our view,
however, “[t]he Sentencing Reform Act does not place district judges in
such a predicament.” Post, at 208.
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way of accomplishing that very limited goal. And one need
not
“live in a world of airy abstractions,” post, at 208, to recog-
nize that Congress's drafting decisions have signifcance.
Next, the Government and the dissent argue that Ester-
as's reading of § 3553(a)(2)(A) is unworkable, because consid-
eration of the other enumerated factors will necessarily
imply consideration of the retributive principles captured
by § 3553(a)(2)(A). The Government relies primarily on
§ 3553(a)(1), which references “the nature and circumstances
of the offense.” How, the Government asks, is a court to
consider the nature and circumstances of the offense without
also considering the “need for the sentence imposed” “to re-
fect the seriousness of the offense, to promote respect for
the law, and to provide just punishment for the offense”?
§ 3553(a)(2)(A).
The answer is straightforward. A court may consider the
nature and circumstances of the offense as relevant for the
considerations set forth in §§ 3553(a)(2)(B), (C), and (D)—
namely, deterrence, incapacitation, and rehabilitation—but a
court cannot consider the nature and circumstances of the
offense as relevant to § 3553(a)(2)(A)'s retributive focus. For
instance, if the defendant's original offense was particularly
violent, that fact might inform the court's judgment as to
whether revocation is necessary “to protect the public from
further crimes of the defendant.” § 3553(a)(2)(C). But the
court could not revoke based on the view that, given the
violent nature of the underlying offense, the defendant de-
serves additional punishment.
9
9
The dissent suggests that this will be an impossible task for district
courts. See post, at 208 (Courts must “engage in mind-bending exer-
cises”); post, at 216 (They must “probe their mental processes to ensure that
no thoughts of retribution entered in”); post, at 217 (We require a “soul-
searching obligation”). Not so. We routinely require judges and juries
to attend to some considerations while ignoring others. See, e. g., Samia
v. United States, 599 U. S. 635, 646 (2023) (“Evidence at trial is often ad-
mitted for a limited purpose, accompanied by a limiting instruction,” and
“our legal system presumes that jurors will ` “attend closely the particular
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The dissent, for its part, argues that we are simply wrong
to
understand § 3553(a)(2)(A) as synonymous with retribu-
tion. Post, at 214–217. Under the dissent's view, § 3553(a)
(2)(A) serves an extensive (if amorphous) role: The phrase
“ `to promote respect for the law' ” encompasses “the whole
point of deterrence,” while the reference to the “ `seriousness
of the offense' ” invokes the “heightened need for deterrence
and incapacitation.” Post, at 215–216. But this approach
renders § 3553(a)(2)(A) largely duplicative of the clear refer-
ences to deterrence, incapacitation, and rehabilitation that
follow in §§ 3553(a)(2)(B), (C), and (D). Recall, too, that there
are four traditional purposes of sentencing. Given that
§§ 3553(a)(2)(B), (C), and(D) set forth three of these purposes,
it is no wonder that § 3553(a)(2)(A) provides the fourth. Not
to mention that the provision speaks in retributive terms:
the “seriousness of the offense,” the need “to promote re-
spect for the law,” and, in particular, the need “to provide
just punishment for the offense.” § 3553(a)(2)(A). In any
event, we say nothing about the meaning of § 3553(a)(2)(A)
today that we have not already said before. See Tapia, 564
U. S., at 326 (“retribution” is “the frst purpose listed in
§ 3553(a)(2)”); Concepcion, 597 U. S., at 494.
Finally, the Government suggests that § 3583(g), which
mandates revocation in certain circumstances, undermines
Esteras's interpretation of the statute. Section 3583(g) does
not specify which factors apply when a court determines the
length of the defendant's postrevocation term of imprison-
ment.
10
So, the Government reasons, reimprisonment under
§ 3583(g) must be subject to the general rule for prison sen-
language of [such] instructions in a criminal case and strive to understand,
make sense of, and follow” ' them” (alteration in original)).
10
Section 3583(g) states that, if the defendant violates certain conditions
of supervised release, “the court shall revoke the term of supervised re-
lease and require the defendant to serve a term of imprisonment not to
exceed the maximum term of imprisonment authorized under subsection
(e)(3).” (Emphasis added.)
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tences articulated in § 3582(a), and that provision directs
cour
ts to the full list of § 3553(a) factors. It would be anom-
alous, the Government says, if a district court could consider
retribution as part of a mandatory revocation under
§ 3583(g) but not as part of a discretionary revocation under
§ 3583(e)(3). Esteras, for his part, argues for consistency in
the other direction: He argues that § 3583(e)'s abbreviated
list governs in both contexts.
We need not resolve the dispute because it does not affect
our ana lysis. To beg i n, the Gover nment's readi ng of
§ 3583(e) does not solve the problem that the Government
has identifed. As the Government sees it, if revocation is
discretionary and thus governed by § 3583(e), the court may
consider § 3553(a)(2)(A), but if revocation is mandatory and
thus governed by § 3583(g), the court must consider § 3553(a)
(2)(A). So while the Government says that it would be
“highly anomalous to have different regimes for determining
the length of prison terms under Sections 3583(e)(3) and
3583(g),” that anomaly persists under the Government's own
reading of the statute. Brief for United States 26. In any
event, that § 3583(e) might operate differently from § 3583(g)
is not reason to disregard § 3583(e)'s plain meaning.
IV
At oral argument, the Government expressed concern that
it would be diffcult for appellate courts to determine
whether a district court has impermissibly relied on § 3553(a)
(2)(A). See Tr. of Oral Arg. 49–50. So we conclude with a
few observations about appellate review.
Much will turn on whether the defendant objects. If the
defendant does not make the district court aware that it may
be impermissibly relying on § 3553(a)(2)(A), then the defend-
ant's appeal will be governed by plain-error review. See
Fed. Rule Crim. Proc. 52(b). In that event, the district
court's order revoking supervised release and requiring re-
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imprisonment will be affrmed unless it is “ `clear' ” or “ `obvi-
ous'
” that the district court actually relied on § 3553(a)
(2)(A)—because it did so either expressly or by unmistakable
implication. United States v. Olano, 507 U. S. 725, 734
(1993).
If the defendant does object to the district court's reliance
on § 3553(a)(2)(A), we anticipate that the district court will
recognize its potential error and clarify its revocation deci-
sion to make clear that it is not taking account of § 3553(a)
(2)(A). For example, the district court could withdraw any
impermissible justifcation or explain that a stray reference
to a § 3553(a)(2)(A) factor was intended to bear on another
§ 3553(a) factor or merely prefatory. If the court nonethe-
less considers the need to exact retribution for the defend-
ant's original criminal offense, and if the error was not harm-
less, then the court of appeals should vacate the court's order
and remand for the court to apply the correct standard. See
Fed. Rule Crim. Proc. 52(a).
This does not mean, as the Government suggests, that our
reading of § 3583(e) amounts to a “substance-free reverse
magic-words requirement.” Brief for United States 37.
The Government confates the proper interpretation of
§ 3583(e) with an appellate court's ability to enforce that in-
terpretation. The “requirement” here is very much sub-
stantive: District courts may not consider the retributive
purpose of § 3553(a)(2)(A) before revoking supervised re-
lease. We trust that district courts will heed that instruc-
tion regardless of the practical likelihood of reversal.
11
11
The dissent takes a curious tack here. It suggests that we lack the
courage of our convictions because we explain that defendants bear the
burden of preserving objections, that district courts will generally comply
with the law once an objection is raised, and that plain-error review ap-
plies to unpreserved claims. See post, at 224–225. But there is nothing
“remarkable” about our explanation, which simply articulates orthodox
principles of party presentation and appellate review. Post, at 224. And
it is surprising that the dissent opens its discussion by suggesting that we
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***
D
istrict courts may revoke a term of supervised release
after considering the factors enumerated in § 3583(e). Be-
cause § 3553(a)(2)(A) is excluded from that list, district courts
may not consider it. The judgments of the Sixth Circuit are
vacated, and the cases are remanded for further proceedings
consistent with this opinion.
It is so ordered.
Justice Sotomayor, with whom Justice Jackson joins,
concurring in part and concurring in the judgment.
I join all but Part II–B of the Court's opinion. I agree
that district courts may not rely on the retributive sentenc-
ing factor set forth in 18 U. S. C. § 3553(a)(2)(A) to revoke
supervised release. In my view, however, district courts re-
voking a term of supervised release should not consider ret-
ribution for any purpose.
The question in these cases is whether, despite Congress's
omission in the supervised-release statute of any reference
to retribution, courts may consider retribution when they
decide whether to revoke a term of supervised release. The
answer is no. In specifying the factors courts should con-
sider before revoking a term of supervised release, Congress
cross-referenced eight out of the ten familiar § 3553(a) fac-
tors, including three of the four purposes of sentencing: de-
terrence, incapacitation, and rehabilitation. “Conspicuously
missing ” from the supervised-release statute, however, “is
§ 3553(a)(2)(A),” which describes the retributive purpose of
punishment. Ante, at 188. The straightforward inference,
as we have said twice before, is that “Congress has expressly
precluded district courts from considering the need for retri-
bution” in supervised release proceedings. Concepcion v.
United States, 597 U. S. 481, 494 (2022); see also Tapia v.
are insuffciently attuned to “the practical effec[t] of [our] holdin[g],” post,
at 208, yet closes by complaining that we are overly sensitive to its conse-
quences, post, at 224–225.
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United States, 564 U. S. 319, 326 (2011). That resolves these
cases.
The
majority approaches the question differently. “In the
context of a revocation hearing,” it reasons, the word “ `of-
fense' ” in § 3553(a)(2)(A) refers to “the underlying crime of
conviction, not the violation of the supervised-release condi-
tions.” Ante, at 193–194. So (the majority continues) by
excluding § 3553(a)(2)(A) from the supervised-release stat-
ute, Congress precluded courts from accounting “for the need
to exact retribution for the defendant's underlying crime.”
Ante, at 194–195.
The problem with that framing is that it relies on an inter-
pretive question with no clear answer. The term “offense”
in § 3553(a)(2)(A) has no meaning “[i]n the context of a revo-
cation hearing,” because the supervised-release statute con-
tains no reference to § 3553(a)(2)(A) or its directive to “pro-
vide just punishment for the offense.” Cf. ante, at 193–194.
At most, then, the majority could ask what Congress would
have meant by “offense” if it had included a reference to
§ 3553(a)(2)(A) in this statute. Yet such speculation is un-
necessary to resolve these cases. Congress studiously omit-
ted all reference to retribution from the supervised-release
statute, so retribution should play no role in revocation
hearings.
Because the majority frames the question as one about
retribution for the original offense, it never decides whether
the supervised-release statute precludes courts from exact-
ing retribution for the defendant's supervised-release viola-
tion. Yet the answer to that question is straightforward.
As the Court holds today, the supervised-release statute
does not per mit considerati on of § 3553(a)(2)(A). That
means courts may consider only the remaining eight enumer-
ated factors, none of which contain any reference to retribu-
tion. See § 3583(e). As the majority recognizes, moreover,
the retr ibutive i nterest i n punishment is i l l suited to
supervised-release proceedings. Supervised release “ `ful-
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flls rehabilitative ends' and `provides individuals with post-
conf
nement assistance.' ” Ante, at 196 (quoting United
States v. Johnson, 529 U. S. 53, 59–60 (2000)); see also S. Rep.
No. 98–225, p. 124 (1983) (Senate Report noting that “the
primary goal” of supervised release “is to ease the defend-
ant's transition into the community . . . or to provide rehabili-
tation”). Thus, “when a defendant violates the conditions of
his supervised release, it makes sense that a court must con-
sider the forward-looking ends of sentencing (deterrence, in-
capacitation, and rehabilitation), but may not consider the
backward-looking purpose of retribution.” Ante, at 196.
In sum, when a court considers whether a supervised-
release violation warrants revocation and reimprisonment
(its primary task during revocation hearings), it must look
only to the forward-looking ends mentioned in the statute.
As to either a supervised-release violation or the underlying
offense, the backward-looking end of retribution is out of
bounds. Although I would have made this point explicit,
nothing in the Court's opinion is inconsistent with it. Ac-
cordingly, I otherwise join the Court's opinion.
Justice Jackson, concurring in part and concurring in
the judgment.
The question presented in this litigation is whether sen-
tencing courts can reference and rely upon the retributive
concerns outlined in 18 U. S. C. § 3553(a)(2)(A) when revoking
a previously imposed term of supervised release. “Esteras
argues that district courts cannot consider the retributive
purpose articulated in § 3553(a)(2)(A) when revoking super-
vised release,” while “[t]he Government insists that courts
can consider it, although they are not required to do so.”
Ante, at 193. Like the Court, I agree with Esteras: Courts
cannot consider this omitted sentencing purpose when revok-
ing supervised release.
That answer is straightforward and responsive. But the
majority goes further, appearing to opine as to the precise
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contours of the retributive concerns that Congress has taken
off
the table. Ante, at 193–195. Venturing into this terri-
tory is not necessary in the context of this litigation. As
Justice Sotomayor explains, whatever § 3553(a)(2)(A) calls
for when Congress has authorized its use, all that the Court
properly decides today is that Congress has forbidden sen-
tencing judges to rely on that same set of considerations in
the supervised-release-revocation context.
I disagree with the Court's discussion of the scope of “of-
fense” in § 3553(a)(2)A) as it relates to § 3583(e) because, in
my view, that part of the opinion confuses more than it clari-
fes. As sentencing judges know, revocation of supervised
release occurs in response to new—often criminal—conduct.
It is entirely conceivable, and perhaps even likely, that when
Congress removed from the list of permissible revocation
considerations § 3553(a)(2)(A)'s “need for the sentence im-
posed” to exact retribution, it sought to prevent the promo-
tion of retribution with respect to whatever new offense trig-
gered the call for revocation of supervised release. At the
very least, that possibility counsels against defnitively as-
ser ting that § 3553(a)(2)(A)'s conspicuous omissi on only
speaks to whether a district court can “account for the need
to exact retribution for the defendant's underlying crime.”
Ante, at 194–195 (emphasis added).
In any event, because § 3553(a) requires district courts to
impose sentences that are “suffcient, but not greater than
necessary” to promote certain purposes of punishment, the
kind of hairsplitting that the majority's opinion invites is
entirely impractical. Sentences either “refect,” “afford,”
or “provide” for the listed purposes of punishment (retribu-
tion, deterrence, incapacitation, rehabilitation) or they don't.
§ 3553(a)(2). It is hard to fathom that Congress meant for
retribution to be both operable and inoperable as it relates
to the imposition of a single revocation sanction, and it is
even harder to imagine how a sentencing court can effec-
tively achieve that binary objective.
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Part II–B of the majority's opinion is both unnecessary to
the
outcome of this litigation and inscrutable in light of how
revocation sentences are actually determined and imposed.
Therefore, I cannot join that Part of the opinion.
Justice Alito, w ith whom Justice Gorsuch joins,
dissenting.
Veteran trial judges often complain that their appellate
colleagues live in a world of airy abstractions and do not
give enough thought to the practical effects of their holdings.
Today's decision is likely to earn the rank of Exhibit A in
the trial bench's catalog of appellate otherworldliness. The
Court interprets the Sentencing Reform Act to mean that
a federal district-court judge, when considering whether to
impose or alter a term of supervised release, must engage in
mind-bending exercises. The judge must take into account
“the nature and circumstances” of a defendant's offense but
is forbidden to consider “the seriousness of the offense.” 18
U. S. C. § 3553(a). The judge must consider what is needed
to “dete[r]” violations of the law or to rehabilitate a defend-
ant, i. e., to cause him to lead a law-abiding life, but cannot
be infuenced by a desire “to promote respect for the law.”
Ibid.
The Sentencing Reform Act does not place district judges
in such a predicament. Neither the statutory text, the in-
terpretive canon on which the Court relies, nor the structure
of the Act supports the Court's interpretation.
I
A
In order to understand these cases and the points on which
the majority and I disagree, some background information
about federal sentencing is required. When a defendant is
“found guilty of an offense,” he may be sentenced to “a term
of probation,” “a fne,” or “a term of imprisonment.”
§ 3551(b). And in crafting a sentence, the court is required
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to consider the 10 factors that are set out in § 3553(a). (For
con
venience, I will call these the sentencing factors.)
If a sentencing court imposes a term of imprisonment, the
court generally has discretion to include “as a part of the
sentence” a term of supervised release. § 3583(a).
1
“Super-
vised release is `a form of postconfnement monitoring ' that
permits a defendant a kind of conditional liberty by allowing
him to serve part of his sentence outside of prison.” Mont
v. United States, 587 U. S. 514, 523 (2019) (quoting Johnson
v. United States, 529 U. S. 694, 697 (2000)). In deciding
whether to impose and in devising a term of supervised re-
lease, a judge is required to consider 8 of the 10 sentencing
factors noted above, specifically, §§ 3553(a)(1), (a)(2)(B),
(a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). (For con-
venience, I will call these the supervised-release factors.)
During a term of supervised release, a defendant must
comply with certain standard conditions, such as reporting
to a probation offcer, as well as any special conditions that
are “tailored specifcally” to “the individual case.” Adminis-
trative Offce of the U. S. Courts, Overview of Probation and
Supervised Release Conditions 8 (2024). If a defendant fails
to comply with these conditions, revocation of supervised re-
lease is sometimes mandatory, see, e. g., § 3583(g), but in most
cases, the court has discretion to choose the appropriate re-
sponse. For example, it may “extend” supervised release
“if less than the maximum authorized term was previously
imposed”; “modify, reduce, or enlarge the conditions of super-
vised release”; or, more seriously, “revoke” supervised re-
lease and “require the defendant to serve in prison all or
part of the term of supervised release authorized by statute
for the offense that resulted in such term of supervised re-
lease.” §§ 3583(e)(2), (3). In deciding whether to alter a
term of supervised release, the court is required to consider
1
In some cases, the imposition of supervised release is mandatory. See,
e. g., 18 U. S. C. § 3583(k) (kidnapping offenses); § 3583( j) (terrorism of-
fenses); 21 U. S. C. §§ 841(b), 960(b) (drug-traffcking offenses).
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the same eight factors that had to be taken into account in
i
mposing the term of supervised release in the frst place.
In these cases, the lead petitioner, Edgardo Esteras, vio-
lated a term of his supervised release by assaulting the
mother of his children and shooting at her vehicle. The sen-
tencing judge revoked supervised release and, in doing so,
referred to Esteras's criminal history and the need to “en-
courage [him] to be respectful of the law.” App. 96a. Cit-
ing these remarks, Esteras contends that the judge based
her decision on an impermissible factor, namely, a desire to
“promote respect for the law.” This factor, which appears
in § 3553(a)(2)(A), is one of the two sentencing factors omit-
ted from the list of supervised-release factors. Esteras
argues, and the Court now agrees, that the omission of
§ 3553(a)(2)(A) from the list of supervised-release factors
means that it cannot be considered. In other words, the
judge in Esteras's case was obligated to put out of her mind
any desire “to promote respect for the law.” Before today,
one might have thought that every aspect of a federal judge's
work should aim to “promote respect for the law.” Appar-
ently, that is no longer true.
B
The question in these cases is what to make of the omission
of § 3553(a)(2)(A) from the list of supervised-release factors.
The Court infers that consideration of this factor is forbid-
den, and, in so doing, relies almost entirely on a canon of
interpretation that bears the Latin name expressio unius est
exclusio alterius. In English, that means “[t]he expression
of one thing implies the exclusion of others.” A. Scalia &
B. Garner, Reading Law: The Interpretation of Legal Texts
107 (2012) (Scalia & Garner). To modify a classic example
slightly, suppose a sign at the entrance of a park said: “No
gasoline- or electric-powered vehicles allowed.” Under the
expressio unius canon, it would be fair to infer that standard
bikes are permitted. See H. Hart, Positivism and the Sepa-
ration of Law and Morals, 71 Harv. L. Rev. 593, 607 (1958).

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Alito, J., dissenting
Although this canon has its place, Reading Law empha-
si
zes that it “must be applied with great caution, since its
application depends so much on context.” Scalia & Garner
107. Our cases have made the same point and have often
rejected use of the canon because of the context in which the
expression appeared. See, e. g., NLRB v. SW General, Inc.,
580 U. S. 288, 302 (2017) (“The expressio unius canon applies
only when circumstances support[ ] a sensible inference that
the term left out must have been meant to be excluded” (in-
ternal quotation marks omitted)); Barnhart v. Peabody Coal
Co., 537 U. S. 149, 168 (2003) (“[T]he canon expressio unius
est exclusio alterius does not apply to every statutory listing
or grouping ”). Reading Law also contains this important
warning: “Even when an all-inclusive sense seems apparent,
one must still identify the scope of the inclusiveness (thereby
limiting [the] implied exclusion).” Scalia & Garner 108 (em-
phasis added).
In these cases, I agree with the Court that the omission
of two of the sentencing factors from the list of supervised
release factors gives rise to a negative inference, but I dis-
agree with the Court about the nature of that inference.
The most likely—and in my view, the appropriate—inference
is simply that § 3583(e), the provision listing the supervised-
release factors, sets out an exclusive list of mandatory fac-
tors. That is “the scope of the inclusiveness.” The Court,
however, goes further and infers not just that there are no
other mandatory factors but that there are no other permis-
sible factors. That aggressive application of the expressio
unius canon goes too far. While the inference produced by
that canon is always dependent on context, the enumeration
of things that must be done generally does not suggest that
no other things may be done.
Consider this example. Suppose I tell my law clerks on a
Monday that by the end of the week they must complete the
bench memos in 6 of the 12 cases scheduled for argument
during the next sitting. That statement would strongly
imply that completion of other bench memos by the end of

212 ESTERAS
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the week is not mandatory. But the statement would not
suggest
that fnishing other bench memos is forbidden.
Many other similar examples could be provided.
To salvage its far-reaching inference, the Court offers its
own variation on the law-clerk hypothetical. In the Court's
hypothetical, a judge tells a clerk “to prepare a bench memo
with a recommendation formed `after considering ' statutory
text, context, and structure, as well as any relevant prece-
dent.” Ante, at 199. As the Court sees it, if the law clerk
also reviews secondary sources “to inform her recommenda-
tion,” the law clerk did not “obe[y] her boss's instructions.”
Ibid.
But nothing about the Court's hypothetical suggests the
law clerk must exclusively consider those four factors.
Would the clerk necessarily infer from the judge's instruction
that nothing else could be considered? I doubt it. And if
the clerk knows that the judge thinks that other factors, such
as statutory purpose or legislative history, are relevant con-
siderations, the inference is unlikely.
For this reason, the Court's use of the expressio unius
canon exceeds its customary and proper use, and the Court
provides no good reason for its aggressive use of that inter-
pretive tool. The Court fnds it signifcant that Congress
included in the list of supervised-release factors “almost the
entire list” of sentencing factors but left out § 3553(a)(2)(A).
Ante, at 195. According to the Court, this makes “all the
more glaring ” Congress's intention that sentencing courts
should not consider § 3553(a)(2)(A) when modifying a term of
supervised release. Ibid.
This is illogical. When a provision sets out a rule and
lists items to which the rule applies, the length of the list
may bolster the strength of the inference that the list is ex-
haustive, but it does not alter the scope of the rule. Suppose
I tell friends who are visiting Washington, D. C., for the frst
time that they must visit a list of enumerated sites. If the
list is long, they might infer that I do not think that there are
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any other sites that they should necessarily try to squeeze
i
n. But it is doubtful that they would infer that I am sug-
gesting that they should necessarily avoid seeing anything
else that might catch their interest.
In short, the expressio unius canon is insuffcient to sup-
port the Court's interpretation.
II
The Court's interpretation is also inconsistent with the
text and structure of the Sentencing Reform Act.
A
Starting with the text, I note three features that counsel
against acceptance of the Court's interpretation.
First, the relevant provisions of the Sentencing Reform
Act lack language like that included in other provisions of
the Act that limit a court's consideration of specifed factors.
For example, § 3582(a)—the provision that directly precedes
the provision setting out the mandatory supervised-release
factors in § 3583—expressly states that a judge's decision
whether to impose a term of imprisonment may not be based
on a desire to “promot[e] correction and rehabilitation.”
When “Congress includes particular language in one section
of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.” Russello
v. United States, 464 U. S. 16, 23 (1983) (internal quotation
marks omitted). Or take § 3565(b), which (as amended in
1988) contains an implicit prohibition on consideration of the
sentencing factors. See 102 Stat. 4361. That provision
mandates revocation of probation if certain conditions are
met, and Congress apparently gave courts no discretion to
even consider the sentencing factors. As a result, the ab-
sence of any even remotely similar language in § 3583(e) is
telling.
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Second, we can infer that the Sentencing Reform Act
a
llows a judge to consider all the sentencing factors because
there are some situations in which factors omitted from the
list of supervised-release factors must be considered. One
such situation occurs when a judge decides how to respond
to a defendant's violation of the terms of supervised release
because in that situation the judge must consider exactly
what is set out in § 3553(a)(3), which is one of the sentencing
factors omitted from the list of supervised-release factors.
That provision refers to “the kinds of sentences available,”
and when a judge is deciding what to do about a defendant
who has violated the terms of supervised release, the judge
must consider the available options, which include termi-
nation, extension, modifcation, and revocation. § 3583(e).
Because a term of supervised release is “part of a sentence,”
each one of these options changes the defendant's sentence.
And therefore, this list of options constitutes a list of “the
kinds of sentences available.”
2
Consideration of “the kinds of sentences available” may be
required during a revocation proceeding for yet another
reason. When a sentencing court revokes a term of super-
vised release and sends the defendant back to prison, the
maximum period of additional confnement authorized de-
pends on the class of the underlying offense. See § 3583(e)(3).
So a sentencing court determining the permissible range of
reimprisonment will necessarily consider the “kinds of sen-
tences” authorized under the statute of conviction.
Third, and most important, the Court's interpretation can-
not account for the inextricable relationship between the
2
The Court argues that these options are not “kinds of sentences” be-
cause the Sentencing Reform Act recognizes only three types of sentences:
probation, fnes, and imprisonment. See ante, at 193, n. 4. According to
the Court, supervised release is not a “ `kin[d] of sentenc[e]' ” but is instead
merely “a component of a defendant's prison sentence.” Ibid. But the
Sentencing Reform Act never says that there are only three “kinds” of
sentences. See § 3551(b).
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omitted sentencing factor at issue in these cases, i. e.,
§
3553(a)(2)(A), and the sentencing factors that a judge must
consider in deciding whether to alter a term of supervised
release. Recall that § 3553(a)(2)(A) requires, among other
things, consideration of “the seriousness of the offense,” and
according to the Court, taking that factor into account is pro-
hibited. But it is undisputed that a judge must consider
“the nature and circumstances of the offense” when altering
a term of supervised release. §§ 3553(a)(1), 3583(e). Since
“the seriousness of the offense” is part of “the nature of the
offense,” the Court's interpretation gives district judges ir-
reconcilable instructions.
Another part of § 3553(a)(2)(A) creates a similar problem
for the Court. Section 3553(a)(2)(A) refers to “the need . . .
to promote respect for the law,” and because that provision
is omitted from the supervised-release factors, the Court
holds that consideration of this factor is not allowed either.
But the Sentencing Reform Act demands consideration of
factors that are hard to separate from “promot[ing] respect
for the law.” In deciding whether to alter a term of super-
vised release, a judge must consider “the need . . . to afford
adequate deterrence to criminal conduct,” § 3553(a)(2)(B),
and the whole point of deterrence is to encourage respect for
and compliance with the law.
The Court struggles in vain to explain away this clash be-
tween what its interpretation forbids and what the Sentenc-
ing Reform Act demands. It entirely ignores the relation-
sh ip between “afford[i ng] adequate deterrence” (a
mandatory consideration) and “promot[ing] respect for the
law” (outlawed under its interpretation). And as for the
confict between requiring consideration of the “nature and
circumstances of the offense” and banning consideration of
“the seriousness of the offense,” the Court's response is an
elaborate theory that has no grounding in the statutory text.
The Court begins by claiming that § 3553(a)(2)(A) relates
solely to retribution and not to any of the other three permit-
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ted goals of punishment—deterrence, incapacitation, and
rehabi
litation. See ante, at 200. But that is simply
not true with respect to two of the objectives to which
§ 3553(a)(2)(A) refers, i. e., the need for a sentence to refect
“the seriousness of the offense” and “to promote respect for
the law.” These two factors implicate other purposes of
punishment too. For example, if the offense in question is
very serious, there is a heightened need for deterrence and
incapacitation, and rehabilitation may be harder. So the
Court's theory veers off course at the start.
After that fawed beginning, the Court tells us that the
supervised-release factors operate as a kind of purpose flter.
Section 3553(a)(2) enumerates four factors that, in the
Court's view, refect the four recognized purposes of punish-
ment. The Court tells us that the “nature and circum-
stances of the offense” must be considered in light of one
of those four purposes. See ante, at 200; accord, Brief for
Petitioners 34–35. The supervised-release factors, however,
include only three of those four purposes and exclude the
goal of retribution supposedly encapsulated in § 3553(a)
(2)(A). So, in the Court's view, the supervised-release stat-
ute flters out § 3553(a)(2)(A) and thereby prohibits a court
from any consideration of the “nature and circumstances of
the offense” in light of § 3553(a)(2)(A)'s supposedly “retribu-
tive focus” and concern with the “seriousness of the offense.”
Ante, at 200.
None of this has any textual support, and it does not solve
the problem faced by a judge who is compelled to consider
the nature and circumstances of an offense but forbidden to
consider its seriousness. If taken seriously, it does not alter
in any way the information that judges may consider. In-
stead, it merely calls on them to probe their mental processes
to ensure that no thoughts of retribution entered in.
3
Im-
3
Here is an example. Suppose a defendant's offense of conviction was
interstate travel in violation of a protective order prohibiting threats, har-
assment, or contact with his former wife. See 18 U. S. C. § 2262(a). And
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Alito, J., dissenting
posing such a soul-searching obligation as a requirement that
may
be enforced in litigation is utterly impractical.
B
No more is needed to reject the Court's interpretation, but
I note for good measure that the structure of the Sentencing
Reform Act also weighs against the Court's interpretation.
The Act gives express instructions about the way in which
the sentencing factors apply to decisions regarding the impo-
sition of each of the Act's three primary penalties (i. e., im-
prisonment, probation, fnes). These instructions fall into
one of two categories. Instructions in the frst category
either mandate consideration of all the sentencing factors
4
or
require their consideration to the extent they are relevant to
suppose that the trial evidence showed the defendant engaged in conduct
that caused his former wife very severe emotional distress. After serv-
ing his sentence, the defendant is given supervised release but quickly
violates a condition of release by resuming the very conduct that landed
him in prison in the frst place. The judge must decide what to do.
Heeding the requirement to consider “the nature and circumstances of the
offense,” the judge calls to mind the trial evidence. Then, as required by
the Sentencing Reform Act, the judge considers whether this information
suggests that reimprisonment is needed either to “afford adequate deter-
rence,” § 3553(a)(2)(B) (i. e., to cause the defendant to leave his former wife
alone), or to “protect the public from further crimes of the defendant,”
§ 3553(a)(2)(C) (i. e., to keep the defendant's former wife safe during the
period of reimprisonment).
The effect of the Court's fltering scheme is to complicate the judge's
consideration of all these matters by demanding that he search his con-
science and ask: “Have I let any thought of retribution enter into my
th i nk i ng? I am inclined to send the defendant back to pr ison for x
months, and I think I'm doing that to achieve deterrence and incapacita-
tion. But was I somehow infuenced by moral disapproval of the defend-
ant's conduct and the feeling that at least part of the x additional months
is simply what he deserves?”
4
See § 3572(a) (requiring the consideration of all sentencing factors in
imposing fnes); § 3584(b) (same for the decision whether to run sentences
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218 ESTERAS
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the type of sentence in question.
5
By
contrast, instructions
in the second category expressly prohibit consideration of
specifc sentencing factors.
6
What is remarkable about § 3583(e), which lists the manda-
tory supervised-release factors, is that it does not fall into
either of these categories. It neither demands consideration
of all relevant sentencing factors nor prohibits consideration
of some or all of them. Instead, it requires consideration of
some of the mandatory sentencing factors but says nothing
about the rest. The appropriate inference is that § 3583(e)
is meant to have a different effect: namely, to give sentencing
courts discretion to consider the omitted factors.
Such discretion is consistent with the Sentencing Reform
Act's general approach to supervised release, which confers
broad discretion on trial judges. In most cases, sentencing
courts “may include” a term of supervised release “as a part”
of “a sentence to a term of imprisonment,” § 3583(a), and
5
See § 3562(a) (requiring the consideration of all sentencing factors “to
the extent that they are applicable” in imposing an initial term of proba-
tion); § 3564(c) (same for early termination of probation); § 3565(a) (same
for the revocation of probation).
6
Section 3582(a) prohibits consideration of rehabilitation in deciding on
a sentence of imprisonment. See Tapia v. United States, 564 U. S. 319,
332 (2011). Similarly, in § 3563(b), Congress confned the discretion of sen-
tencing courts to a particular subset of the § 3553(a) factors. Under that
provision, sentencing courts may set conditions of probation “to the extent
that such conditions are reasonably related to the factors set forth in sec-
tion 3553(a)(1) and (a)(2) and to the extent that such conditions involve
only such deprivations of liberty or property as are reasonably necessary
for the purposes indicated in section 3553(a)(2).” Congress's use of limit-
ing language (“to the extent that” and “as are reasonably necessary”)
makes its restrictive intent clear. Another provision of the Act appears
to go even further by removing a sentencing court's discretion to consider
the § 3553(a) factors at all. Section 3565(b) provides that a sentencing
court “shall revoke [a] sentence of probation” if the defendant possesses
controlled substances or frearms, refuses to comply with drug testing, or
fails a drug test more than three times over the course of a year. No
mention of the § 3553(a) factors is made.
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“may” terminate, extend, or revoke supervised release,
§
3583(e).
This grant of discretion tracks the background principles
against which the Act was drafted, namely, “the established
tradition of district courts' sentencing discretion.” Concep-
cion v. United States, 597 U. S. 481, 495 (2022). As we re-
cently noted, “[t]he only limitations on a court's discretion to
consider any relevant materials at an initial sentencing or in
modifying that sentence are those set forth by Congress in
a statute or by the Constitution.” Id., at 494; see § 3661.
“Congress is not shy about placing such limits” on sentencing
discretion, id., at 494, and its failure to do so in § 3583(e)
permits the inference that sentencing courts retain discre-
tion to consider “any relevant materials,” including the omit-
ted § 3553(a) factors, ibid.
7
7
Congress's decision to omit § 3553(a)(2)(A) specifcally has its own logic.
Congress may have sought to encourage sentencing courts to give greater
weight to the remaining purposes of sentencing set forth in § 3553(a)(2) to
ensure that “[s]upervised release fulflls [its] rehabilitative ends.” United
States v. Johnson, 529 U. S. 53, 59 (2000). But in doing so, Congress likely
understood that sealing off any discretion to consider § 3553(a)(2)(A)'s re-
tributive factors would be impracticable. Supervised release is “a part
of ” “a term of imprisonment for” the defendant's offense, § 3583(a), and
when a sentencing court imposes a term of imprisonment for the offense,
it must consider § 3553(a)(2)(A), see § 3582(a).
Congress may have rendered the three § 3553(a)(2)(A) factors discretion-
ary because it understood that each factor may apply in some, though not
all, hearings regarding the alteration of supervised release. The need “to
promote respect for law” strikes me as an evergreen concern when a court
is considering what remedy best enables a defendant to “learn to obey the
conditions of his supervised release.” 88 F. 4th 1163, 1167 (CA6 2023)
(internal quotation marks omitted). But the need “to provide just punish-
ment for the offense” seems less relevant when a sentencing court ad-
dresses a violation of supervised release. And the relevance of the re-
maining § 3553(a)(2)(A) factor—the need “to refect the seriousness of the
offense”—depends on context. If, for example, a sentencing court decides
to revoke supervised release following a defendant's violation, it must, as
already explained, examine how Congress categorized the offense's “seri-
ousness” to determine the authorized term of reimprisonment. See

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III
A
The
Court attempts to buttress its interpretation by citing
statements made in two of our prior cases, but the holdings
in those cases were far afeld from the question presented
here, and the comments in question simply provided back-
ground. In Tapia v. United States, 564 U. S. 319 (2011), we
held that a sentence of imprisonment cannot be imposed or
extended to foster a defendant's rehabilitation. Before di-
rectly addressing that issue in Part III of the opinion, Part
II provided “statutory background.” Id., at 323. After
noting the four purposes of sentencing, the opinion stated
that under the Sentencing Reform Act, “a particular purpose
may apply differently, or even not at all, depending on the
kind of sentence under consideration.” Id., at 326. As an
example, the opinion stated that under § 3583(c), “a court
may not take account of retribution (the frst purpose listed
in § 3553(a)(2)) when imposing a term of supervised release.”
Ib i d. (emphasis i n or ig i na l ). Because the wordi ng of
§ 3583(c) is similar to that of § 3583(e)—the provision that
controls alteration of a term of supervised release—the
Court today treats Tapia's statement as strong support for
its decision.
This reads too much into what is plainly peripheral dicta.
For one thing, it is not even clear that the statement means
what the Court claims. The verb “may” sometimes denotes
“permission” and sometimes denotes “possibility.” Random
House Webster's Unabridged Dictionary 1189 (2d ed. 2001).
The Court reads the statement in Tapia to mean permission:
a judge may not consider retribution because that is not al-
lowed. But the statement could also mean “possibility”: a
§ 3583(e)(3). But if the court instead opts for a less-severe sanction, such
as the modifcation of a condition of release, it is not necessarily required
to consider how Congress scored the underlying offense's “seriousness.”
See § 3583(e)(2).
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judge, as a matter of discretion, may choose not to take retri-
buti
on into account. It is debatable which reading is better,
and in any event, as the opinion stated twice, the statement
was merely “statutory background.” 564 U. S., at 323, 326.
Moreover, Tapia “dealt with a different sentencing law” con-
cerned with imposing imprisonment, not supervised release,
and the Court's drive-by analysis of § 3583(c) did nothing to
reckon with Congress's lack of “explicit directions” as to the
omitted sentencing factors. 88 F. 4th 1163, 1168 (CA6 2023).
Such “[d]ictum settles nothing, even in the court that utters
it.” Jama v. Immigration and Customs Enforcement, 543
U. S. 335, 351, n. 12 (2005).
The Court's other precedent, Concepcion v. United States,
597 U. S. 481, is no better. The holding in that case—that
sentencing courts adjudicating motions to reduce a sentence
under the First Step Act have discretion to consider inter-
vening changes in the law or relevant facts—is far removed
from the question here. After emphasizing that sentencing
judges have generally exercised broad discretion regarding
the facts considered in sentencing determinations, the opin-
ion noted that Congress has sometimes imposed restrictions;
as an illustration, it simply cited the statement made in
Tapia. See 597 U. S., at 494.
Whatever weight these dicta merit, they are surely insuf-
fcient to support today's decision.
B
The Court attempts to justify its interpretation by draw-
ing a hard line between the Act's primary penalties—
“[f]ines, probation, and imprisonment”—and supervised re-
lease. Ante, at 196. In its view, the former are a court's
main “tools for ensuring that a criminal defendant receives
just deserts for the original offense.” Ibid. But “when a de-
fendant violates the conditions of his supervised release,” the
Court reasons, “it makes sense that a court must consider
the forward-looking ends of sentencing (deterrence, incapac-
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it ati on, and rehabi l it ati on), but may not consider the
backw
ard-looking purpose of retribution.” Ibid.
This argument exaggerates the distinction between the
two classes of penalties to which the Court refers. Contrary
to the Court's suggestion, a decision about the revocation
of supervised release may call for consideration of certain
backward-looking factors. For example, under § 3583(e)(3),
the limits of the discretion enjoyed by a court considering
the revocation of supervised release depend on the class (A,
B, C, or D) of the “statute for the offense that resulted in
[the] term of supervised release.” Section 3583(e) also man-
dates consideration of § 3553(a)(6), which, in turn, requires
consideration of “the need to avoid unwarranted sentence
disparities among defendants with similar records who have
been found guilty of similar conduct.” In assessing that fac-
tor, a sentencing court must necessarily look back to the de-
fendant's offense conduct and also consider the past offense
conduct of similarly situated defendants.
A defendant's original offense may also be important when
a judge is considering whether a violation of a condition of
supervised release is serious enough to justify sending the
violator back to prison for a particular length of time. Con-
sider a defendant convicted for the possession of child por-
nography who later violates a special condition of his release
restricting his viewing of any sexually explicit materials, in-
cluding material that depicts teenagers who are not actually
under the age of 18. In such a case, the serious nature of
the original crime may be thought to have a bearing on the
implications of the later violation and the need for reimpris-
onment to deter the defendant from future backsliding, to
protect society from the consequences of child pornography,
or to provide the opportunity for further rehabilitation ef-
forts in prison.
It is revealing that the Court only half-heartedly buys its
forward-looking/ backward-looking distinction. In a foot-
note, the Court refuses to take a position on the question
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whether a sentencing court may revoke supervised release
i
n retribution “for the violation of the conditions of the su-
pervised release.” Ante, at 194, n. 5 (emphasis deleted).
IV
In addition to all these faults, the Court's interpretation,
as I emphasized at the outset of this opinion, defes com-
mon sense.
The Court's interpretation of which sentencing factors a
court may consider in altering a term of supervised release
must also apply when a court is initially imposing a term
of supervised release. The relevant wording in § 3583(c),
which governs the imposition of supervised release, and
§ 3583(e), which governs the alteration of supervised release,
cannot be meaningfully distinguished. But applying the
Court's interpretation to the original imposition of super-
vised released creates a huge practical problem. A term of
imprisonment and a term of supervised release are often im-
posed at the same time. In imposing a prison term, a court
must consider all of the 10 sentencing factors, but under to-
day's reading of the Sentencing Reform Act, the court is pro-
hibited from considering 2 of those factors when it turns to
the issue of supervised release. How this will work in prac-
tice is anyone's guess. Must sentencing courts “adjourn the
hearing after imposing ” imprisonment and then “start over
with a new unblemished inquiry” and without giving any
thought to the omitted § 3553(a) factors? 88 F. 4th, at 1168.
The Sixth Circuit feared that might be required. Many dis-
trict judges may soon face this problem because “[t]he vast
majority (95.1%)” of offenders convicted of a felony or Class
A misdemeanor are also “sentenced to terms of supervised
release.” United States Sentencing Commission, Federal
Offenders Sentenced to Supervised Release 50 (2010). In-
deed, in 2024, supervised release was imposed in 50,865
cases. See United States Sentencing Commission, 2024
Sourcebook of Federal Sentencing Statistics 41.
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Other daunting practical problems will arise when judges
are
deciding whether to alter a defendant's term of super-
vised release. When sending a violator of supervised re-
lease back to prison, a court must carefully control every
word that is uttered to explain the decision. Avoiding the
language of § 3553(a)(2)(A)—“the seriousness of the offense,”
“respect for the law,” and “just punishment for the of-
fense”—is obviously essential. But what about synonyms
and other arguably related words and phrases? Not only
must sentencing judges avoid verbal missteps, they must do
so while heeding the requirement to consider mandatory
supervised-release factors that are essentially inseparable
from the factors that are fatal. See supra, at 215.
The potential consequences of the Court's interpretation
are so alarming that many of the lower courts that have
adopted today's interpretation have squirmed to avoid its ef-
fects. See, e. g., United States v. Miqbel, 444 F. 3d 1173, 1182
(CA9 2006) (“[A] sentence would be unreasonable if the court
based it primarily on an omitted factor, such as a factor
provided for in § 3553(a)(2)(A). . . . We do not suggest that a
mere reference to promoting respect for the law would in
itself render a sentence unreasonable” (emphasis added));
United States v. Sanchez, 900 F. 3d 678, 684, n. 5 (CA5 2018)
(“Of course, this is not to say that any use of words like
`punish,' `serious,' or `respect' automatically renders a revo-
cation sentence void. Mere mention of impermissible fac-
tors is acceptable; to constitute reversible error . . . the for-
bidden factor must be `dominant' ” (quoting United States v.
Rivera, 784 F. 3d 1012, 1017 (CA5 2015))).
Today's decision is similar. After adopting an impractical
interpretation, the decision takes the remarkable step of out-
lining ways in which sentencing judges and courts of appeals
can avoid strict compliance. At the trial level, if the defense
objects that a comment made by the judge crosses the line,
the Court counsels that the judge can easily ward off rever-
sal. The judge can “withdraw any impermissible” remark
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as: 606 U. S. 185 (2025)
225
Alito, J., dissenting
or recast any “stray reference to a § 3553(a)(2)(A) factor” as
“merely
prefatory.” Ante, at 203. In addition, the judge
may “explain that a stray reference” to a prohibited factor
was actually “intended to bear on” a mandatory factor with
which it is closely related. Ibid.
After providing this roadmap for district judges, the Court
turns to the courts of appeals. The Court reminds circuit
judges that an appeal based on today's decision “will be gov-
erned by plain-error review,” assuming the defendant fails
to object in the district court. Ante, at 202. And plain-
error review, as we have long observed, is an “exacting ”
standard and is meant to correct “only particularly egregious
errors” that “seriously affect the fairness, integrity or public
reputation of judicial proceedings.” United States v. Young,
470 U. S. 1, 15 (1985) (internal quotation marks omitted).
Reading between the lines, the Court's message is clear.
Unless a district judge obdurately fails to backtrack as rec-
ommended when there is an objection based on today's deci-
sion, there should be few problems. The Court's outline
shows that it has a low opinion of the value of its handiwork,
and that should seal the case that the whole effort is a
mistake.
***
For these reasons, I cannot agree with the Court's deci-
sion, and I therefore respectfully dissent.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 210, line 10: “his” is changed to “her”
p. 210, line 17: “his” is changed to “her”