UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 23-3422 │ v. │ │ EDGARDO ESTERAS, │ Defendant-Appellant. │ ┘

On Petition for Rehearing En Banc United States District Court for the Northern District of Ohio at Youngstown. No. 4:14-cr-00425-10—Benita Y. Pearson, District Judge.

Decided and Filed: December 20, 2023

Before: SUTTON, Chief Judge; WHITE and THAPAR, Circuit Judges.

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COUNSEL ON PETITION FOR REHEARING EN BANC: Christian J. Grostic, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Cleveland, Ohio, for Appellant. ON RESPONSE: Matthew B. Kall, Jason Manion, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

The court issued an order denying the petition for rehearing en banc. MOORE, J. (pp. 3– 9), delivered a separate opinion dissenting from the denial of the petition for rehearing en banc. GRIFFIN, J. (pp. 10–11), also delivered a separate opinion, in which BLOOMEKATZ, J., joined, dissenting from the denial of the petition for rehearing en banc. No. 23-3422 United States v. Esteras Page 2

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ORDER ____________________

The court received a petition for rehearing en banc. The original panel has reviewed the petition for rehearing and concludes that the issues raised in the petition were fully considered upon the original submission and decision. The petition then was circulated to the full court. Less than a majority of the judges voted in favor of rehearing en banc.

Therefore, the petition is denied. No. 23-3422 United States v. Esteras Page 3

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DISSENT ____________________

KAREN NELSON MOORE, Circuit Judge, dissenting from denial of rehearing en banc.1 The top line of any sentence is generally the term of incarceration. What catches the eye is how long the defendant will be in prison, not how long the defendant will remain under court supervision. But in the federal system, supervised release—the often years’ long period of court supervision and restrictions following incarceration—comes with the specter of more time in a cell. Judges may “revoke” a defendant’s supervised release if a defendant violates court-ordered conditions, sending the defendant back to prison for months or possibly years. After Edgardo Esteras spent twelve months in federal prison on his original term of incarceration, the judge in his case sentenced him to 24 more months in prison—double his original sentence—for violating conditions of supervised release. R. 439 (Revocation Tr. at 85:13–21) (Page ID #2887).

Revocation of supervised release is immensely impactful, and sometimes carries consequences even greater than an original term of incarceration. In sentencing Esteras after revoking his supervised release, the district court focus