The U.S. Supreme Court has agreed to address a circuit split over what factors judges can consider when sentencing a person for violating conditions of supervised release, an issue estimated to affect thousands of defendants each year.

The justices granted a petition for certiorari on Oct. 21 in three Sixth Circuit cases that upheld sentences for defendants who had violated their release conditions. The men — Edgardo Esteras, Timothy Michael Jaimez and Toriano A. Leaks Jr. — claim the court was wrong to allow their judges to consider three of the standard sentencing factors: the need for the sentence to promote respect for the law, reflect the seriousness of the offense and provide just punishment for it.

Those three considerations are baked into the sentencing rubric that Congress gave judges, but lawmakers left them out of the statute concerning what judges can consider when issuing a sentence for a supervised release violation.

"Congress drew a careful line instructing courts to rely on punishment and factors related to punishment only when sentencing defendants for their initial offenses, consistent with constitutional protections for those facing criminal punishment," the men said in their petition. "The decisions below erased that line."

The petition argued that the split among the appeals courts over what factors are permissible is "deep and pervasive."

The First, Second, Third, Sixth and Seventh Circuits have held that judges can consider the three factors despite their omission from the law, while the Fourth, Fifth, Ninth and Tenth Circuits have ruled that courts may not rely on them, according to the petition.

The question could affect thousands of cases a year, the men said, pointing to the 108,000 federal supervision violations from 2013 to 2017, with 86% of those resulting in a new prison term.

Congress' decision to carve out the three standard sentencing factors from the overall list that judges should consider when handing down sentences for violations of supervised release should be interpreted as a sign that lawmakers meant to take those items off the table, the men said. 

They told the justices that is exactly how they read the similar exclusion of factors for judges to weigh when imposing a term of supervised release, and the high court most recently affirmed that view in its 2022 opinion in Concepcion v. United States. 

The consideration of punishment factors in revocation sentencings also raises double-jeopardy concerns, the petition said, adding that a defendant could be doubly punished for the same conduct if the supervised release violation is a crime by itself and the judge ups the sentence for the infraction on account of a need to punish.

In its opposition brief, the government said Congress' decision to list certain factors — and exclude others — for judges to consider when revoking supervised release and resentencing doesn't mean those items not listed must be disregarded by courts. 

The law's list shows a "legislative judgment that the factors listed in those provisions are the only factors that a court must consider," the government said.

The U.S. Department of Justice argued that the men overstated the alleged disagreement in the various circuits that have ruled on the same question, adding that any "modest disagreement has little practical effect and does not warrant this court's review."

Representatives for the parties were not immediately available for comment on Monday.

Esteras, Jaimez and Leaks are represented by Joseph Medici and Kevin M. Schad of the Federal Public Defender for the Southern District of Ohio, and Stephen C. Newman and Christian J. Grostic of the Federal Public Defender of the Northern District of Ohio.

The U.S. Department of Justice is represented by its own Elizabeth B. Prelogar, Nicole M. Argentieri and Thomas E. Booth.

The case is Esteras et al. v United States, case number 23-7483, in the U.S. Supreme Court.

--Editing by Melissa Treolo.