United States v. Lopez-Diaz
CourtCourt of Appeals for the First Circuit
Date FiledNovember 13, 2026
Docket25-2179
StatusPublished
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Full Opinion
United States Court of Appeals
For the First Circuit
No. 25-2179
UNITED STATES,
Appellee,
v.
JONATHAN LÓPEZ-DÍAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Gelpí, Lynch, and Dunlap,
Circuit Judges.
Andrew S. McCutcheon, First Assistant Federal Public
Defender, with whom Rachel Brill, Federal Public Defender, and
Franco L. Pérez-Redondo, Assistant Federal Public Defender,
Supervisor, Appellate Division, were on brief, for appellant.
Maarja T. Luhtaru, Assistant United States Attorney, with
whom W. Stephen Muldrow, United States Attorney, and Juan Carlos
Reyes-Ramos, Assistant United States Attorney, Chief, Appellate
Division, were on brief, for appellee.
November 13, 2026
DUNLAP, Circuit Judge. Defendant-Appellant Jonathan
López-Díaz admitted the violation of bank robbery and illegal
possession of a firearm in 2014. After serving a prison sentence
for those crimes, López commenced a term of supervised release.
Since then, the district court has twice revoked López's supervised
release due to repeated violations of his conditions of
supervision, including several positive tests for cocaine and
marijuana and his admitted use of those drugs. Following López's
second revocation, the district court sentenced him to twelve
months' imprisonment with no further term of supervision to follow.
López appeals that sentence, arguing that the district court
misclassified his conditions of release violation conduct,
improperly considered retributive factors, and imposed a
procedurally and substantively unreasonable sentence. We reject
López's challenges and thus affirm.
I.
On July 2, 2014, López pleaded guilty to bank robbery in
violation of 18 U.S.C. § 2113(a) and possession of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A); on November 3, 2014, he was sentenced and
subsequently served a ninety-three-month term of imprisonment.
Upon completion of that term, on January 24, 2020, he began a
five-year term of supervised release. Just over two years later,
the United States Probation Office ("USPO") reported to the
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district court that López had violated his supervised release
conditions based on domestic violence complaints and a protection
order filed against him by his ex-girlfriend. The district court
subsequently revoked López's supervised release, and López served
a thirteen-month term of imprisonment. He began a second,
three-year term of supervised release on April 13, 2023.
On October 3, 2025, USPO filed a motion notifying the
district court that López had violated the conditions of his second
term of supervised release, specifically the conditions to "not
unlawfully possess controlled substances" and "refrain from the
unlawful use of controlled substances." USPO's motion reported
that López tested positive for cocaine four times between September
and November 2024 and once for marijuana in September 2025, and
that he signed admission forms on four of these occasions. It
further reported that López admitted to using controlled
substances in August 2024, after which he was enrolled in a random
drug testing program and entered an inpatient treatment program
that he completed in February 2025. According to the motion,
López tested negative for all controlled substances four times
between October 2024 and February 2025 and
"expressed . . . willingness to remain receiving treatment
services." USPO asked the district court to take no adverse action
at that time. The district court took no action, instead then
ordering that López "remain in the random drug testing program"
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and "attend to all treatment services as instructed by the
probation officer."
On October 20, 2025, just seventeen days after USPO
filed its initial motion, it filed a supplemental motion notifying
the court of an additional violation. Specifically, the
supplemental motion provided that López violated the condition
that he "follow the instructions of the probation officer" by
declining to complete his Post-Conviction Risk Assessment
questionnaire, despite several follow-ups from his probation
officer. According to the supplemental motion, López's probation
officer informed him of "the consequences that he might face as a
result of not following . . . instructions" and told López "that
the [c]ourt w[ould] be informed [of] his noncompliant behavior."
The supplemental motion requested that a summons be issued to López
to appear before the court "to show cause why his supervised
release term should not be revoked."
Two more USPO motions followed in quick succession. On
October 30, 2025, USPO filed a second supplemental motion
notifying the court of additional violations by López. The second
supplemental motion reported that López had again violated the
conditions to "not unlawfully possess controlled substances" and
"refrain from the unlawful use of controlled substances." It
noted that López tested positive for marijuana on October 16, 2025.
On November 20, 2025, USPO filed a third supplemental motion
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notifying the court that López had violated additional conditions
by failing to "notify [his] probation officer within 72 hours" of
receiving various traffic citations and failing to attend a
scheduled appointment with his drug treatment provider.
At his revocation hearing, López did not contest the
USPO's reported violations of his conditions of supervised
release. His counsel argued, however, that in calculating López's
guidelines range, the court should classify his violations as Grade
C rather than Grade B. When the court noted binding precedent
indicating that López's conduct amounted to a Grade B violation,
his counsel contended that the mandatory revocation statute, 18
U.S.C. § 3583, and the Sentencing Guidelines distinguish positive
drug tests from the possession required for a Grade B violation.
Counsel refrained, however, from "get[ting] into hypotheticals
about how [López could have] conceivably smoke[d] marijuana
without actually physically possessing" it.
López's counsel then addressed various factors that he
argued should mitigate López's sentence, including that López had
"apologize[d] to his probation officer," had "receiv[ed] dual
diagnosis treatment with a therapist" to address "mental health
issues," was "in a stable and supportive relationship with his
partner," had been present with his children, had "been working
extremely hard in a very difficult job" operating "complicated
machinery," and had achieved "economic stability" through a
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contract with Puerto Rico's Department of Housing. Counsel
requested that the court decline to impose a sentence of
incarceration and instead "focus on [López's] rehabilitation and
reintegration to the community," proposing additional conditions
of supervised release, such as "a curfew with electronic
monitoring" and "increasing the number of days of treatment."
The government, on the other hand, sought revocation of
López's supervised release. It highlighted López's history of
noncompliance with his conditions of supervised release, even
after the court declined to act upon the violations reported in
USPO's first motion. The government further argued that López had
committed a Grade B violation for possessing controlled substances
under Puerto Rico law, referencing First Circuit precedent
"h[olding] that a defendant's positive [drug] test result and
admission of drug use are evidence of . . . possession
of . . . controlled substances." And despite acknowledging
López's "positive changes" as recounted by his counsel, the
government argued that López's disrespect for his probation
officer and failure to comply with supervised release conditions
justified a longer sentence. The government thus requested nine
months of imprisonment with no term of supervision to follow.
López's counsel raised several points in rebuttal. He
argued that a nine-month sentence would be inconsistent with
Esteras v. United States, 606 U.S. 185 (2025); emphasized that
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López's communication with his probation officer had improved and
that he "no longer ha[d] positive[] [drug tests] in the quantity
and types that he had before"; and suggested that López's
violations did not indicate that he was "thumbing [his] nose at
supervision," and "[s]o giving up on [] López" was not "the
reaction that the Supreme Court has instructed." Counsel again
requested that the court instead permit López to "complete the
rest of his supervision term . . . with additional conditions."
In his allocution, López apologized to his probation
officer for declining to fill out the questionnaire. López
admitted to "ma[king] mistakes" and testing "positive several
times," but he insisted that he had "tried to amend [his] conduct
and do things in a positive way while struggling with [his]
addiction and attending the help that [he was] assigned" by the
court. López concluded by requesting the opportunity to "complete
[his supervised release] sentence" so that he could "continue to
work and be with [his] family."
After hearing from the parties, the district court
discussed the Supreme Court's decision in Esteras. The court
acknowledged that, under Esteras, it could not consider the need
that the sentence "reflect the seriousness of the offense or
promote respect for the law or provide just punishment." At the
same time, the court stated that Esteras does allow the court "to
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afford adequate deterrence to protect the public from additional
crimes by the defendant." The court continued:
What is confusing about the Esteras case is,
what do you do in cases like Mr. López's and
others . . . where there has been more than
one revocation? Are two revocations
sufficient to reflect the seriousness of an
offense and to promote respect for the law?
Are three? Are four? Are five? We just
don't know. And I think that's the point that
[Justice] Alito was making in his dissent.
That appellate judges . . . don't realize
what the practical effects of their opinions
are.
So when can a revocation consider just
punishment? Never? According to Esteras,
never. But that's what makes it impractical
because what happens when there's a second
proceeding or a third proceeding or a fifth
proceeding? We've had all of those. So
that's what it is -- I'm sure that not only
confuses me but confuses most of district
judges as Justice Alito says in his dissent.
The district court found that López had violated his
conditions of supervised released as provided in USPO's motions,
and so it revoked his term of supervised release. The court went
on to find that López had committed a Grade B violation because
his "[u]se of controlled substances involve[d] possession" of
those substances, which constitutes a crime under Puerto Rico law
with "a term of imprisonment of more than one year." Accordingly,
the court calculated an advisory guidelines range of six to twelve
months' imprisonment, based on López's Criminal History Category
of II and Grade B violation.
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Turning to López's sentence, the district court stated
that it considered the factors under 18 U.S.C. § 3583, emphasizing
"the nature and circumstances of . . . López's violation[s], as
well as his history and characteristics." The court remarked that
it was López's second revocation and that "[h]is first revocation
was for new criminal conduct involving domestic violence." The
court noted that López "requested further supervision" with
"stricter" conditions; however, it stated that López "ha[d] shown
that he [wa]s unable to comply with the law or the conditions of
supervision imposed on him." Although it observed that "[f]rom
October 2024 to February 2025 [López] tested negative [for] all
controlled substances" and that López had completed an inpatient
treatment program in February 2025, the court concluded that López
had "shown a lack of commitment to the supervision process by
possessing and using controlled substances," including "six
positive results [for] cocaine and/or marijuana." That included
two positive tests for marijuana after López started receiving
outpatient treatment in February 2025. The court additionally
noted López's "fail[ure] to report contacts with law enforcement
within seventy-two hours" as required. Finally, the court
highlighted that López "refused to answer the probation officer's
questionnaire, was disrespectful to the probation officer and the
treatment provider," and, even though he apologized, he did so
"only after he was told by the probation officer that he was going
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to be referred to the [c]ourt" for revocation proceedings. The
court concluded that "López ha[d] not taken advantage of the
opportunities provided to him by the [c]ourt or the probation
officer that allowed him to remain on supervision while receiving
treatment services." Based on his "pattern of noncompliant
behavior, the breach of trust, and his history and
characteristics," the court imposed a top-of-the-guidelines
sentence of twelve months' imprisonment with no term of supervision
to follow.
López's counsel objected to this sentence on several
grounds. First, counsel argued that the court focused on López's
violation conduct only and ignored his "large pattern of compliance
in terms of the lack of positives over" the year prior. Second,
counsel argued that the court violated Esteras by considering the
prior revocation of López's supervised release. Third, counsel
argued that the court incorrectly classified López's violation
conduct as a Grade B, rather than a Grade C, violation. Fourth,
counsel argued that the court failed to conduct an "individualized
assessment" by "focus[ing] on retribution to the exclusion of"
López's "reintegration and rehabilitation."
The district court reiterated that it had already
discussed its reasoning for finding a Grade B violation and that
it did consider both López's negative drug tests from October 2024
to February 2025 and his completion of an inpatient program in
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February 2025. The court nonetheless granted López's request to
self-surrender a week later so that he could tend to outstanding
work and family obligations, on the condition that he complete a
daily urinalysis until then.
This appeal ensued.
II.
"[W]e ordinarily review sentences imposed following
revocation of supervised release for abuse of discretion." United
States v. Rodríguez–Meléndez, 828 F.3d 35, 38 (1st Cir. 2016)
(citations omitted). Under this multi-faceted
abuse-of-discretion umbrella, we review the sentencing court's
factual findings for clear error, its legal conclusions and
application of the Sentencing Guidelines de novo, and its judgment
calls for abuse of discretion. United States v. Mendoza-Maisonet,
962 F.3d 1, 20 (1st Cir. 2020) (citation omitted); United States
v. Colón-Maldonado, 953 F.3d 1, 3-4 (1st Cir. 2020). Applying
these standards and considering the three arguments raised by López
on appeal, we conclude that López's sentence should be affirmed.
A. Classification of Violation Conduct
López first contends that the district court
misclassified his violation conduct as a Grade B violation based
on an improper conclusion that he possessed -- rather than just
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used -- controlled substances.1 The court applied § 7C1.1(a) of
the guidelines, which defines Grade B violations as "conduct
constituting [a non-Grade A] federal, state, or local offense
punishable by a term of imprisonment exceeding one year," and Grade
C violations as "conduct constituting . . . a federal, state, or
local offense punishable by a term of imprisonment of one year or
less" or "a violation of any other condition of supervised
release." U.S.S.G. § 7C1.1(a)(2), (3) (U.S. SENT'G COMM'N 2025).
The court found that the conduct at issue constituted a Grade B
violation, not a Grade C violation, because López's "[u]se of
controlled substances involve[d] possession" of those
substances -- a crime under Puerto Rico law with "a term of
imprisonment of more than one year."
López argues that the district court erred by
purportedly inferring drug possession from positive drug tests,
and that the latter cannot constitute a Grade B violation. We
disagree with the premise of López's argument. The district court
never suggested that it relied solely on López's positive drug
1 The parties dispute whether this issue is a legal or factual
one. The government asserts that it is factual and that the
district court did not "clearly err" in finding that López
possessed drugs. López, on the other hand, argues that it is a
question of whether "testing positive and admitting use . . . can,
as a matter of law, be classified as felony 'possession,'" calling
for de novo review. For the reasons we explain below, even giving
López the benefit of the de novo review standard, we conclude the
district court did not err.
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tests to support a finding of possession. To the contrary, the
record included other evidence supporting possession: López's own
concessions. At his revocation hearing, López declined to contest
the violations asserted by USPO in its motions, including separate
violations for "unlawful[ly] us[ing] . . . controlled substances"
and "unlawfully possess[ing] controlled substances." López also
declined to challenge factual allegations that he (1) signed
admission forms with respect to three positive cocaine tests
between September and November 2024 and one positive marijuana
test in September 2025; and (2) "admitted a relapse in the use of
controlled substances" in August 2024. The court thus had before
it López's own admissions of use and possession along with the
positive drug tests. The district court could rely on these facts
in concluding that López committed a Grade B violation under
§ 7C1.1(a) of the guidelines.
In United States v. Brennick, 337 F.3d 107 (1st Cir.
2003), we held that a positive drug test, along with a defendant's
confession to his probation officer that he had used cocaine,
sufficed to support a conviction for drug possession under state
law and, in turn, support a Grade B violation under § 7B1.1(a) of
the guidelines2 for purposes of determining a revocation sentence.
2 Section 7B1.1(a) in the then-applicable version of the
Guidelines Manual, which the sentencing court applied to the
defendant in United States v. Brennick, 337 F.3d 107 (1st Cir.
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Id. at 109, 111–12. We explained that although we had "no reason
to doubt" that a state court would accept the "powerful scientific
evidence" of a positive drug test alone as sufficient to show
possession, "the evidence was not limited to th[at] drug test"
because the defendant also "confessed to using drugs." Id. at
111. That "corroborated confession," we remarked, was "sufficient
to uphold a conviction" for drug possession under state law. Id.
at 112 (emphasis omitted). The logic of Brennick squarely applies
here: López tested positive for controlled substances several
times, signed admission forms regarding those positive tests and
separately admitted to relapsing in his use of controlled
substances, and did not contest allegations by USPO that he
violated his conditions of supervised release by both using and
possessing controlled substances.
Our decision in United States v. Dow, 990 F.2d 22 (1st
Cir. 1993), also supports our decision here. In Dow, a defendant
on supervised release tested positive for marijuana on eleven
occasions. Id. at 23. He also admitted to the violation of his
supervised release condition not to "purchase, possess, use,
distribute or administer any narcotic or other controlled
substance." Id. Based on that evidence, the sentencing court
found that the defendant "possess[ed]" a controlled substance as
2003), is equivalent to § 7C1.1(a) of the November 2025 Guidelines
Manual, under which López was sentenced.
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provided by the mandatory revocation statute, 18 U.S.C. § 3583(g),
during his term of supervised release. Id. On appeal, the
defendant argued that "the use or consumption of marijuana,
evidenced solely by laboratory analysis of urine samples, [could]
not constitute 'possession.'" Id. We rejected that argument,
reasoning that the defendant's admission of the violation, "which
was voluntary, knowing and made with advice of counsel," belied a
conclusion that "he was not 'in the possession of a controlled
substance,' as stated in § 3583(g)." Id. (quoting 18 U.S.C.
§ 3583(g)). Indeed, the defendant had not "limit[ed] his plea to
accepting the results of the laboratory analyses of his urine
samples"; to the contrary, he "admitted the possession and use of
a narcotic or controlled substance." Id. Like the defendant in
Dow, López admitted the violations asserted by USPO in its
revocation motions; in doing so, López admitted to independent
violations for "unlawful use" and "unlawful[] possess[ion]" of
controlled substances.
The law-of-the-circuit doctrine instructs that we are
"bound by prior panel decisions that are closely on point." United
States v. Mao, 174 F.4th 245, 252 (1st Cir. 2026) (quoting United
States v. Wurie, 867 F.3d 28, 34 (1st Cir. 2017)). Brennick and
Dow compel the conclusion that the district court did not err in
finding that López possessed controlled substances and thus
committed a Grade B violation.
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López nevertheless seeks to avail himself of one of our
"extremely narrow" and "hen's-teeth-rare" exceptions to the
law-of-the-circuit doctrine, id. (quoting Wurie, 867 F.3d at 34),
namely, that "authority that postdates the original decision,
although not directly controlling, nevertheless offers a sound
reason for believing that the former panel, in light of fresh
developments, would change its collective mind," id. at 252-53
(quoting Lassend v. United States, 898 F.3d 115, 124 n.6 (1st Cir.
2018)). In his view, following certain amendments to 18 U.S.C.
§ 3583 in 1994 and 2002 (collectively, the "Amendments"), "there
is every reason to believe that" the panels in Dow and Brennick
would have reached different holdings today. According to López,
the Amendments "reflect Congress' recognition that drug use is
often tied to addiction and such issues should first be addressed
through testing and treatment." Most central to his argument
here, López highlights Congress' 2002 addition of the
more-than-three-positive-tests trigger for mandatory revocation
under subsection (g)(4), which he asserts distinguished mere drug
positives from "possession" under subsection (g)(1). See 18
U.S.C. § 3583(g)(1), (4).3
3 López also highlights three amendments to § 3583 implemented
by the 1994 Violent Crime Control and Law Enforcement Act, Pub. L.
No. 103-322, §§ 110505(1)–(3), 20414(c), 108 Stat. 1831, 2016,
2017 (1994): (1) the addition of a mandatory condition that
defendants refrain from "unlawful use of a controlled substance"
and submit to drug testing, 18 U.S.C. § 3583(d); (2) the addition
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Nothing in the Amendments indicates that the panel in
either Brennick or Dow would have "change[d] its collective mind"
and held that positive drug tests, plus the defendant's admission
of drug use, cannot establish possession. Mao, 174 F.4th at 253
(quoting Lassend, 898 F.3d at 124 n.6). Our decision in Brennick
actually postdated the Amendments, thus confirming that they would
not change the panel's decision-making under materially similar
facts. See 337 F.3d 107. Even setting this aside, we are not
persuaded that the Amendments would have affected our
determinations regarding the sufficiency of the evidence in either
case.
López argues that the 2002 adoption of subsection (g)(4)
meaningfully changed the statute. Section 3583(g) provides the
grounds for mandatory revocation of supervised relief. Among
those grounds are subsection (g)(1), which calls for revocation
when the defendant "possesses a controlled substance,"
and -- after 2002 -- subsection (g)(4), which calls for revocation
when the defendant "tests positive for illegal controlled
substances more than [three] times over the course of [one] year."
of a requirement that courts consider whether "the availability of
appropriate substance abuse treatment programs, or a[]
[defendant]'s current or past participation in such programs,
warrants an exception" to mandatory revocation for "a defendant
who fails a drug test," id.; and (3) the elimination of a mandatory
minimum imprisonment term and inclusion of a requirement that a
discretionary sentence not "exceed the maximum term" of authorized
imprisonment, id. § 3583(g).
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18 U.S.C. § 3583(g)(1), (4). López asserts that subsection (g)(4)
"would serve no function" if a single failed drug test could equate
to "possession" under subsection (g)(1) and that, accordingly,
López's failed drug tests cannot alone support a finding of
possession. The argument misses the mark. The district court
here did not even apply subsection (g) because that provision deals
with mandatory, not discretionary, revocation. Brennick did not
apply that subsection, either. See 337 F.3d at 109. Instead,
like the district court, Brennick applied the applicable version
of § 7C1.1(a) of the guidelines, then appearing at § 7B1.1(a), in
classifying the defendant's violation conduct. See id. Brennick
applied the same provision to materially similar facts; it controls
and remains sound precedent.
Moreover, although Dow preceded the 2002 amendment to
§ 3583(g) and did apply that provision, it too remains good law.
Other circuits have reinforced Dow's reasoning after the 2002
amendment. In United States v. Hammonds, 370 F.3d 1032 (10th Cir.
2004), the Tenth Circuit recognized that "undisputed evidence of
drug use, as shown by a positive drug test, together with evidence
that the defendant's use was knowing and voluntary," supports a
finding that the defendant "possessed the drug" under the mandatory
revocation statute, 18 U.S.C. § 3583(g)(1). Id. at 1037. The
Hammonds court rejected the argument that López makes here that
such a rule renders the more-than-three-positive-tests trigger in
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subsection (g)(4) meaningless. Id. It reasoned that whereas
subsection (g)(4) "requires revocation of a defendant's term of
supervised release where the defendant tests positive for illegal
controlled substances at least four times in one year," by contrast
subsection (g)(1) "requires revocation only where the district
court finds that the defendant had the required mens
rea" -- namely, where a preponderance of the evidence shows that
he "knowingly and voluntarily used the drug." Id. That mens rea
requirement, according to the court, "sufficiently distinguishes
[subsection (g)(1)] from subsection (g)(4) so that the latter
provision may apply in circumstances where the former does not."
Id.4
Accordingly, López's positive drug tests, corroborated
by his own admissions of drug use and possession, sufficed to
establish possession. The district court did not err in
4
Notably, the Tenth Circuit relied on the "unremarkable
observation that a person cannot use a drug without possessing it"
to support a finding of knowing and voluntary use by the defendant.
United States v. Hammonds, 370 F.3d 1032, 1035 (10th Cir. 2004)
(quoting United States v. McAfee, 998 F.2d 835, 837 (10th Cir.
1993)). The court cited various other circuits that have likewise
equated knowing and voluntary drug use with possession. Id. at
1035-36. In other words, where a defendant tests positive for
controlled substances, and no evidence suggests that "ingestion of
[those] controlled substances was accidental or inadvertent or in
any way not in [the defendant's] control," the "natural inference"
is that the defendant "possessed [them] before using them."
United States v. Patlan, 31 F.4th 552, 558 (7th Cir. 2022). We
need not, however, rely on any such inference here given that López
expressly admitted to using drugs.
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concluding that López committed a state "offense punishable by a
term of imprisonment exceeding one year" supporting a Grade B
violation. U.S.S.G. § 7C1.1(a)(2).
B. Application of Esteras
López next argues that the district court erred by
considering "retributive factors" when fashioning his revocation
sentence under 18 U.S.C. § 3553(e), in violation of Esteras v.
United States. López contends that various aspects of the
district court's sentencing rationale improperly considered
"backward-looking, retributive factors Esteras prohibits." We
disagree.
In Esteras, the Supreme Court held that a sentencing
court "may not consider the retributive purpose of [18 U.S.C.]
§ 3553(a)(2)(A) before revoking supervised release." 606 U.S. at
203. Thus, a sentencing court may not consider "the seriousness
of the offense," "respect for the law," and "just punishment for
the offense." 18 U.S.C. § 3553(a)(2)(A). Looking to the language
of the supervised release statute, 18 U.S.C. § 3583(e), the Court
reasoned that despite referencing most of the sentencing factors
under § 3553(a), the statute excluded reference to the retributive
factors provided in § 3553(a)(2)(A), which suggested that
"Congress did not intend for courts to consider" those factors.
Esteras, 606 U.S. at 195. The Court therefore concluded that
"when a defendant violates the conditions of his supervised
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release, . . . a court must consider the forward-looking ends of
sentencing (deterrence, incapacitation, and rehabilitation), but
may not consider the backward-looking purpose of retribution."
Id. at 196. Noting, however, that "§ 3553(a)(2)(A) speaks only
to the 'offense,'" which "can mean only the underlying criminal
conviction," the Court cabined its holding to bar retributive
considerations for only the "underlying criminal conviction" and
declined to address whether a court may consider retribution for
"violation of the conditions of the supervised release." Id. at
194 n.5 (emphasis omitted). The Court recognized, but "t[ook] no
position" on, the Sentencing Commission's existing policy that
"the sentence imposed upon revocation [is] intended to sanction
the violator for failing to abide by the conditions of the
court-ordered supervision" and that "in revocation proceedings, a
court may 'sanction' an offender's 'breach of trust.'" Id.
(quoting U.S.S.G. ch. 7, pt. A, intro. 3(b) (Nov. 2024)).
López first contends that the district court's disregard
for Esteras is evidenced by its opening remarks, which critiqued
the opinion. We disagree. The district court did suggest that
Justice Alito made a "good point" in his dissent that appellate
judges are often viewed by trial judges as "liv[ing] in a world of
airy abstractions" where they "do not give enough thought to the
practical effects of their holdings." Id. at 208 (Alito, J.,
dissenting). It further criticized Esteras as being
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"impractical." Despite its criticism, however, the district court
emphasized that Esteras precluded it, in fashioning López's
revocation sentence, from "consider[ing] . . . the need for the
sentence impose[d] [to] reflect the seriousness of the offense or
promote respect for the law or provide just punishment." By
contrast, the court noted that it could consider the need to
"afford adequate deterrence to protect the public from additional
crimes by the defendant and to provide the defendant with needed
educational, vocational training, medical care, et cetera."
The record confirms that the district court refrained
from relying on the retributive considerations in § 3553(a)(2)(A)
when sentencing López. It instead considered López's "pattern of
noncompliant behavior" as evidenced by his repeated supervised
release violations, his "breach of trust" with the court, and "his
history and characteristics." In particular, the court
highlighted that "[t]his [wa]s [López's] second revocation"; that
López "ha[d] shown that he [wa]s unable to comply with the law or
the conditions of supervision imposed on him"; that López had
"shown a lack of commitment to the supervision process by
possessing and using controlled substances," including "six
positive results [for] cocaine and/or marijuana"; and that even
when "referred to outpatient treatment," López "continued to use
controlled substances." The court also noted López's "refus[al]
to answer the probation officer's questionnaire" and
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"disrespect[]" towards "the probation officer and the treatment
provider" and concluded that "López ha[d] not taken advantage of
the opportunities provided to him . . . that allowed him to remain
on supervision while receiving treatment services." Absent from
the court's analysis was any reference to § 3553(a)(2)(A) or the
retributive factors precluded by Esteras.
We further note that the district court expressly said
that it did not consider the retributive factors in
§ 3553(a)(2)(A). Rather, the court stated that it considered only
the factors listed in 18 U.S.C. § 3583, emphasizing "the nature
and circumstances of . . . López's violation[s], as well as his
history and characteristics." We give substantial weight to the
district court's statement that it did not consider the
§ 3553(a)(2)(A) factors. See United States v. López-Felicie, 109
F.4th 51, 59 (1st Cir. 2024) (citing United States v. Santiago-
Rivera, 744 F.3d 229, 233 (1st Cir. 2014)).
López interprets the record differently. He insists
that the district court's statements concerning his prior
revocation and failure to "take[] advantage of the opportunities
provided to him" through his supervised release revealed its
intention to "punish" him for "prior proceedings." This argument,
however, is also unavailing.
Importantly, the district court's statements do not
speak to López's "underlying criminal conviction," the only
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conduct for which Esteras precludes retributive considerations.
606 U.S. at 194 n.5. Esteras did not address what a court may
consider with respect to a defendant's "violation of the conditions
of the supervised release," id. (emphasis omitted),5 and thus did
not overturn our Circuit's precedent permitting consideration of
the nature and circumstances of post-offense violations. See,
e.g., United States v. Ramirez-Ayala, 101 F.4th 80, 89 (1st Cir.
2024) (applying the principle that "a defendant who violates the
conditions of his supervised release breaches the trust that the
court has extended to him" and affirming an upwardly variant
revocation sentenc