Implicit Breaches of Plea Agreements and Improper Reliance on First Step Act Credits:
Commentary on United States v. Bland (2d Cir. 2025)

I. Introduction

The Second Circuit’s summary order in United States v. Bland, No. 24‑2874 (2d Cir. Dec. 23, 2025), presents an unusually sharp rebuke of the Government’s sentencing advocacy while ultimately affirming the defendant’s within‑Guidelines sentence. Although formally non‑precedential, the order is important for at least three reasons:

1. It holds that the Government breached a plea agreement by implicitly urging an above‑Guidelines sentence—“winking” at the district court—despite a promise not to seek or “suggest in any way” a sentence above the stipulated range.
2. It reinforces and sharpens the Second Circuit’s emerging rule (articulated in United States v. James, 151 F.4th 28 (2d Cir. 2025)) that potential First Step Act earned‑time credits and RDAP reductions may not be used as a stand‑alone basis to lengthen a sentence, and that this is “always improper” for the Government to invoke in that way.
3. It flags, in explicit terms, the danger that sentencing advocacy referencing a defendant’s physical size—especially when the defendant is a Black man—can evoke impermissible stereotypes and potentially implicate constitutional concerns, even if no reversible error is found on the record.

Defendant‑Appellant Shatique Bland pleaded guilty, pursuant to a plea agreement, to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The agreement stipulated a Sentencing Guidelines range of 51–63 months’ imprisonment and contained (i) a mutual promise not to advocate for a sentence outside that range, and (ii) an appellate waiver precluding Bland from appealing any sentence within or below the range.

The district court (Kaplan, J.) imposed a 60‑month sentence—within the stipulated range. On appeal, Bland argued that:

• the Government breached the plea agreement by implicitly urging the court to impose a sentence above 63 months, chiefly by invoking speculative reductions under the First Step Act and RDAP; and
• the Government’s repeated references to his size (“tall, powerfully built man,” “six‑foot‑five adult male”) injected impermissible bias and improperly influenced the sentencing court.

The Second Circuit (Sack and Pérez, JJ., and Briccetti, J. by designation) agreed that the Government had in fact breached the agreement and that its reliance on potential time‑credits was improper. It also expressed concern about the Government’s size‑focused rhetoric. Nevertheless, applying plain‑error review (because there was no contemporaneous objection), the panel held that the errors neither were “plain” at the time nor affected Bland’s substantial rights, and it found the sentence both procedurally and substantively reasonable. The judgment was therefore affirmed.

II. Summary of the Opinion

The principal points of the court’s summary order can be distilled as follows:

• Appellate waiver framework. Plea‑based appellate waivers are “presumptively enforceable” (United States v. Burden, 860 F.3d 45 (2d Cir. 2017)), but will not be enforced where (i) the Government has breached the plea agreement, or (ii) the sentence rests on constitutionally impermissible factors (e.g., race) (Cook v. United States, 84 F.4th 118 (2d Cir. 2023)).
• Breach of plea agreement. The Government breached its promise not to “suggest in any way” a sentence outside the 51–63 month range when it:
  • told the court that, if a 60‑month sentence were imposed, Bland might actually serve only about 27 months due to potential earned‑time credits and RDAP benefits, calling that a “shocking reality” the court “can and should consider”; and
  • argued at sentencing that while it was advocating for 60 months, “a guideline sentence above 60 months, indeed a sentence above 60 months, would be reasonable.”
  This was an impermissible “winking” attempt to induce an upward variance above the stipulated Guidelines range, notwithstanding formal disclaimers.
• Improper reliance on First Step Act credits. Building on United States v. James, the panel states that it is “always improper” for the Government to cite potential served‑time reductions under the First Step Act or RDAP as a stand‑alone factor in favor of a longer sentence. Any consideration of such credits must be “meaningfully tied” to the statutory sentencing factors in 18 U.S.C. § 3553(a).
• No plain error. Because Bland did not object below, the panel applied plain‑error review. It held:
  • Error existed (there was a breach and improper advocacy), but
  • the error was not “plain” at the time of sentencing because James was decided afterwards, and
  • there was no indication that the district court “took the bait” or actually lengthened the sentence because of the Government’s arguments, so Bland’s substantial rights were not affected.
• Size‑related rhetoric and bias. The court acknowledged the risk that emphasizing Bland’s stature—“tall, powerfully built man,” “very large, powerful man”—could trigger racially‑laden stereotypes about Black men, citing Buck v. Davis, 580 U.S. 100 (2017), and Second Circuit precedents (United States v. Leung, 40 F.3d 577 (2d Cir. 1994); United States v. Fiore, 381 F.3d 89 (2d Cir. 2004)) emphasizing that even the appearance of racial bias at sentencing can require remand.
• Affirmance. Despite expressing reluctance to “countenance” the Government’s breach and being “troubled” by its advocacy, the court affirmed, finding no plain error and no procedural or substantive unreasonableness in the 60‑month sentence.

III. Detailed Analysis

A. Factual and Procedural Background

Bland, while selling marijuana outside Bronx bodegas, was captured on surveillance transferring and storing a loaded firearm inside a bodega. He was charged with:

1. possession of a firearm by a convicted felon (18 U.S.C. § 922(g)(1));
2. possession with intent to distribute marijuana; and
3. using and carrying a firearm in furtherance of a drug trafficking crime (a § 924(c)‑type count).

Under a plea agreement, he pleaded guilty only to the § 922(g)(1) count. In return, the Government agreed to dismiss the drug and § 924(c) charges. The agreement:

• stipulated a Guidelines range of 51–63 months’ imprisonment; and
• included a mutual promise that the parties “will not suggest in any way that the Probation Office or the Court consider a sentence outside of the Stipulated Guidelines Range.”

Bland also agreed to an appellate waiver: he would “not file a direct appeal or otherwise challenge” any sentence within or below the stipulated range.

The Government’s sentencing memorandum argued for 60 months—near the top of the range—but then highlighted that, due to good‑time credit, First Step Act earned‑time credits, and up to 12 months’ reduction associated with RDAP, the court could “reasonably expect” that Bland might serve only about 27 months if it imposed a 60‑month sentence. The memo characterized that as a “shocking reality” that the court “can and should consider” in determining the “appropriate sentence.”

At the hearing, the Government reiterated that a 60‑month sentence was appropriate, but added that “a guideline sentence above 60 months, indeed a sentence above 60 months, would be reasonable” given the purported “quantum of harm” Bland had caused. Defense counsel corrected the Government’s mistaken assertion that Bland was eligible for RDAP‑based reductions, explaining that because his offense involved a firearm, he was categorically ineligible under 28 C.F.R. § 550.55(b)(5)(ii); the Government did not dispute this at the time.

Judge Kaplan imposed a 60‑month term, within the stipulated range. On appeal, despite the appellate waiver, Bland argued that:

1. the Government’s “winking” advocacy breached the plea agreement; and
2. the Government’s focus on his size invoked impermissible (if implicit) biases, rendering the sentence unlawful.

B. Precedents Cited and Their Role in the Court’s Reasoning

1. Appellate Waivers and Their Exceptions

The panel anchors its treatment of Bland’s appellate waiver in longstanding Second Circuit doctrine:

• United States v. Burden, 860 F.3d 45 (2d Cir. 2017), and United States v. Arevalo, 628 F.3d 93 (2d Cir. 2010): These cases reiterate that appellate waivers in plea agreements are “presumptively enforceable.” They reflect the contractual conception of plea agreements and the interest in finality of negotiated dispositions.
• United States v. Borden, 16 F.4th 351 (2d Cir. 2021): Cited as a representative example that, where an appellate waiver is enforceable, the appeal must be dismissed.
• Cook v. United States, 84 F.4th 118 (2d Cir. 2023): This decision catalogues recognized exceptions to the enforcement of appellate waivers, including:
  • when the Government breaches the agreement; and
  • when the sentence is based on constitutionally impermissible factors (race, ethnicity, or other prohibited biases).
  The Bland panel explicitly relies on these two exceptions to entertain Bland’s appeal despite the waiver.

Thus, Cook functions as the doctrinal gateway: if there is a breach or a reliance on forbidden factors, the appellate waiver no longer shields the sentence from review. Because those questions overlap with the merits, the panel proceeds directly to the substantive analysis.

2. Plea Agreements as Contracts and Strict Construction Against the Government

To determine whether a breach occurred, the panel invokes contract‑law principles:

• United States v. Helm, 58 F.4th 75 (2d Cir. 2023), and United States v. Sealed Defendant One, 49 F.4th 690 (2d Cir. 2022): Plea agreements are interpreted “in accordance with principles of contract law,” focusing on what the parties “reasonably understood” the terms to mean.
• United States v. Vaval, 404 F.3d 144 (2d Cir. 2005), and United States v. Lawlor, 168 F.3d 633 (2d Cir. 1999): These cases stress that plea agreements are construed “strictly against the government” and that courts will “not hesitate to scrutinize the government’s conduct to ensure that it comports with the highest standard of fairness.”

These authorities undergird the panel’s willingness to treat implicit “winks” toward an above‑Guidelines sentence as a breach, notwithstanding the Government’s formal position that it was “recommending” 60 months.

3. Plain‑Error Review of Unpreserved Breach Claims

Because Bland did not object to the Government’s alleged breach at sentencing, the panel applies plain‑error review under Federal Rule of Criminal Procedure 52(b):

• United States v. Rivera, 115 F.4th 141 (2d Cir. 2024): Establishes that unpreserved claims that the Government breached a plea agreement are reviewed for plain error.
• United States v. Taylor, 961 F.3d 68 (2d Cir. 2020), and United States v. Bleau, 930 F.3d 35 (2d Cir. 2019): Articulate the four‑part plain‑error test:
  1. there was an error;
  2. the error was “plain” (clear or obvious) at the time of appellate review, typically in light of “clearly established” law;
  3. the error affected the defendant’s substantial rights (usually meaning a reasonable probability of a different outcome); and
  4. the appellate court, in its discretion, concludes that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• United States v. Aybar‑Peguero, 72 F.4th 478 (2d Cir. 2023), and United States v. Donziger, 38 F.4th 290 (2d Cir. 2022): Cited for the proposition that an error is “plain” only if it contravenes law that was “clearly established” at the time.

These precedents structure the court’s conclusion that, although the Government breached the plea agreement, that breach was not a “plain” error at the time of sentencing (because James had not yet been decided) and did not affect Bland’s substantial rights.

4. Review of Sentences for Procedural and Substantive Reasonableness

The court’s treatment of Bland’s impermissible‑factor argument is framed by its general sentencing‑review jurisprudence:

• Baseline standard:
  • United States v. Park, 758 F.3d 193 (2d Cir. 2014): Sentences are reviewed for “reasonableness” under an abuse‑of‑discretion standard, with separate but intertwined inquiries into procedural and substantive reasonableness.
  • Procedural reasonableness focuses on the process and explanation under 18 U.S.C. § 3553(c); substantive reasonableness asks whether the length of the sentence is justified by the factors in § 3553(a).
• Plain error vs. abuse‑of‑discretion:
  • United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008), and United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007): Unpreserved procedural claims are reviewed for plain error.
  • United States v. Thavaraja, 740 F.3d 253 (2d Cir. 2014): Notes that the court has not definitively decided whether plain‑error review applies to unpreserved substantive challenges; in practice, the court often assumes abuse‑of‑discretion review.
  • United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012); United States v. Martinez, 991 F.3d 347 (2d Cir. 2021); and United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc): Emphasize that substantive review is “particularly deferential” and generally limited to sentences that “shock the conscience” or lie outside the range of permissible decisions.
• Impermissible factors and bias:
  • United States v. Jones, 100 F.4th 103 (2d Cir. 2024): Reflects application of abuse‑of‑discretion review to claims that a sentence was influenced by constitutionally impermissible considerations (there, the defendant’s association with a sectarian militant group).

These cases inform the panel’s decision to assess any bias‑based challenge for both procedural error (plain‑error standard) and substantive unreasonableness (abuse of discretion), while acknowledging the conceptual difficulty of separating the two when an improper factor is alleged (Park, 758 F.3d at 196–202).

5. Government “Winking” Advocacy and Breach: Amico, Vaval, and the Ninth Circuit

The panel relies on both Second Circuit and Ninth Circuit authority to define what counts as a breach when the Government formally adheres to a stipulated recommendation but implicitly urges a harsher outcome:

• United States v. Amico, 416 F.3d 163 (2d Cir. 2005): Warns that even an explicit statement that the Government “is not requesting” a sentence above the agreed range must be “carefully studied in context.” If the Government’s commentary “reasonably appears to seek to influence the court in a manner incompatible with the agreement,” a breach occurs “notwithstanding formal language of disclaimer.”
• Vaval, 404 F.3d at 153: Holds that the Government’s statements of intention at sentencing do not insulate it from a finding of breach if what is actually said amounts to an argument for an upward departure or variance.
• United States v. Farias‑Contreras, 104 F.4th 22 (9th Cir. 2024) (en banc), and United States v. Morales Heredia, 768 F.3d 1220 (9th Cir. 2014): The Ninth Circuit uses the metaphor of the Government “winking” at the district court—purporting to honor the plea while implicitly requesting a different outcome. The Second Circuit quotes this line with approval.

These cases collectively support the panel’s conclusion that the Government’s reference to a “shocking” gap between a nominal 60‑month sentence and actual time served, coupled with the statement that a sentence “above 60 months” would be reasonable, was an impermissible attempt to circumvent its promise not to advocate for any sentence outside the 51–63 month range.

6. First Step Act Credits and § 3553(a): United States v. James and United States v. Amato

The opinion leans heavily on the Second Circuit’s then‑recent decision in United States v. James, 151 F.4th 28 (2d Cir. 2025), which clarified the role of First Step Act earned‑time credits at sentencing:

• District courts cannot lengthen a sentence based on the possibility that the Bureau of Prisons (BOP) will later reduce the sentence via earned‑time credits.
• Under the First Step Act, the award of earned‑time credits is discretionary; thus, basing a higher sentence on speculative future credits risks relying on predictions that may not materialize.
• Section 3553(a) directs courts to impose “the particular sentence to be imposed,” not to adjust upward to offset what the BOP might ultimately decide regarding time actually served. The relevant inquiry is the appropriate sentence, not net time in custody after administrative adjustments.
• Consideration of earned‑time credits might be permissible only if “meaningfully tied” to § 3553(a) factors—mere “lip service” or repackaging of forbidden rationales is not enough.

The panel also cites United States v. Amato, 48 F.4th 61 (2d Cir. 2022), for the broader proposition that arguments precluded by statute cannot be “repackaged” as § 3553(a) considerations. In Amato, this principle arose in the context of restitution, but the logic extends: statutory constraints on sentencing cannot be evaded under the guise of § 3553(a) reasoning.

Together, James and Amato supply the doctrinal foundation for the panel’s categorical statement that it is “always improper” for the Government to invoke potential earned‑time credits as a stand‑alone basis to advocate for a longer sentence.

7. Impermissible Bias: Buck, Fiore, and Leung

On the prejudice issue, the panel cites foundational Supreme Court and Second Circuit cases on bias at sentencing:

• Buck v. Davis, 580 U.S. 100 (2017): Holds that sentencing must be focused on what the defendant did, not on who the defendant is. Punishment based on immutable characteristics (such as race) “flatly contravenes” basic principles of the criminal justice system.
• United States v. Leung, 40 F.3d 577 (2d Cir. 1994), and United States v. Fiore, 381 F.3d 89 (2d Cir. 2004): Warn that “even the appearance” that a sentence reflects the defendant’s race or nationality ordinarily requires remand for resentencing—even if overt bias is not conclusively established.

The panel draws on these authorities to highlight the gravity of allowing rhetoric that may trigger racialized stereotypes—such as emphasizing the physical largeness of a Black male defendant—while ultimately concluding that the record does not show actual reliance on such considerations by the district court in Bland’s case.

C. The Court’s Legal Reasoning

1. Threshold: Effect of the Appellate Waiver

The court begins by acknowledging that Bland’s appeal falls squarely within the terms of his appellate waiver: he expressly agreed not to appeal any sentence “within or below” the 51–63 month range, and he received 60 months. Under Burden and Arevalo, such waivers are ordinarily enforced.

However, under Cook, the waiver is inapplicable if:

1. the Government breached the plea agreement; or
2. the sentence was based on constitutionally impermissible factors (e.g., race).

Because both the alleged breach and the alleged bias are precisely the grounds for Bland’s appeal, the court proceeds to analyze them, recognizing that resolution of these threshold issues is intertwined with the merits.

2. Government Breach of the Plea Agreement

The panel concludes that the Government breached its plea agreement in two related ways:

1. Implicit upward advocacy. In context, the Government’s sentencing memo and oral argument signaled that:
   • a nominal 60‑month sentence would result in an actual time served of roughly 27 months (an assertion partly based on a mistaken belief that Bland qualified for RDAP credits); and
   • to achieve the court’s intended punitive effect—given this “shocking reality”—a sentence “above 60 months” would be “reasonable.”
   Although the Government formally “recommended” a 60‑month sentence, the panel, applying Amico and Vaval, held that its advocacy “more clearly pointed towards an upward variance or departure from the stipulated range, rather than a mere three‑month increase” within the range (51–63 months). That is, the Government was effectively urging the court to consider a sentence higher than 63 months, in direct contravention of its promise not to “suggest in any way” such a sentence.
2. Use of forbidden considerations. Independently of the plea agreement, the panel views the Government’s reliance on speculative earned‑time credits as an inherently improper sentencing consideration under James. It declares that “it is always improper—for the Government to cite potential served‑time reductions as a stand‑alone factor for sentencing.”

The opinion thus makes clear that a prosecutor cannot avoid breach merely by avoiding explicit numeric requests (e.g., “we are not asking for 84 months”). Context matters. If the Government’s argument reasonably appears designed to move the court beyond the agreed range, a breach occurs, regardless of formalistic disclaimers.

3. Improper Reliance on First Step Act Credits

The panel’s treatment of First Step Act credits and RDAP reductions merits emphasis because it is unusually categorical:

• The Government told the district court that, if sentenced to 60 months, Bland “may serve no more than approximately 27 months,” and labelled this a “shocking reality” that the court “can and should consider.”
• This argument treats potential credits and reductions—good‑time credit, earned‑time credits under 18 U.S.C. §§ 3624(b)(1) and 3632(d)(4), as well as a 12‑month RDAP reduction under 18 U.S.C. § 3621(e)(2)(B)—as a basis for increasing the nominal term to achieve some target amount of time actually served.
• James explains that this logic is unsound because:
  • credits are discretionary, and future participation in programs is uncertain;
  • § 3553(a) directs courts to determine the “particular sentence to be imposed,” not to micromanage actual time served after administrative adjustments; and
  • a defendant’s potential future participation in rehabilitation programs is not meaningfully related to their “background, character, and conduct” for sentencing purposes under 18 U.S.C. § 3661.

The panel adds that even “lip service” to § 3553(a) cannot salvage what is in substance a forbidden argument; courts and parties may not “repackage” prohibited considerations as § 3553(a) factors (Amato).

In a particularly strong statement, the court observes: “It was improper—and is always improper—for the Government to cite potential served‑time reductions as a standalone factor for sentencing.” This language underscores that, in the Second Circuit, prosecutors are now clearly on notice that they may not urge courts to lengthen sentences on the theory that the BOP or First Step Act mechanisms will later reduce them.

The footnote addressing RDAP underscores the factual unreliability of the Government’s submission: Bland was legally ineligible for RDAP‑based reductions because his offense “involved the carrying, possession, or use of a firearm” (28 C.F.R. § 550.55(b)(5)(ii)), a point defense counsel made at sentencing and the Government eventually conceded on appeal. This reinforces the panel’s broader criticism of the Government’s sentencing advocacy.

4. Why the Breach Did Not Amount to Plain Error

Despite finding a clear breach and substantive impropriety, the panel denies relief under the plain‑error standard. The reasoning proceeds as follows:

1. Error: There was error—indeed, a breach of the plea agreement and reliance on an improper sentencing consideration.
2. Plainness at the time: For an error to be “plain,” it must be apparent in light of “clearly established” law at the time of appellate review. Although James now makes the impropriety of the Government’s argument clear, James was decided after Bland’s sentencing. Thus, at the time of sentencing, the law was not “clearly established” on this point, precluding a finding of “plain” error.
3. Effect on substantial rights: The panel emphasizes that the district court did not “take the bait.” There is nothing in the record suggesting that Judge Kaplan increased the sentence in order to “correct” for anticipated First Step Act credits or RDAP reductions, nor that he was induced to depart or vary above the stipulated Guidelines range. The court imposed 60 months—within the 51–63 month range—and there is no indication that, but for the Government’s improper arguments, he would have imposed a lower term.
4. Fairness and integrity of proceedings: Although the panel expresses strong disapproval of the Government’s behavior and acknowledges the institutional interest in holding the Government to its bargains, it concludes that the high bar for plain‑error relief is not met here. It therefore declines to exercise its discretion to grant relief on this record.

Importantly, because the panel holds that a breach did occur, the appellate waiver is not enforced against Bland’s challenges. However, the lack of plain error and absence of prejudice mean that the sentence is nonetheless affirmed.

5. Alleged Consideration of Impermissible Size‑Related and Racial Stereotypes

Bland also argued that the Government’s repeated references to his physical size—“tall, powerfully built man,” “very large, powerful man,” “six‑foot‑five adult male”—invited the court to sentence him based on immutable characteristics intertwined with racial stereotypes of Black men as dangerous and threatening.

The panel approaches this claim in three steps:

1. Legal principles. Citing Buck, the panel reaffirms that “law punishes people for what they do, not who they are” and that punishment based on immutable characteristics (such as race) is categorically forbidden. It further notes, via Leung and Fiore, that “even the appearance that the sentence reflects a defendant’s race or nationality will ordinarily require a remand for resentencing.”
2. Concern about the Government’s rhetoric. The court observes that the Government offered “no satisfactory explanation” for why Bland’s size was relevant to the sentence. Although the language was facially race‑neutral, the panel acknowledges the risk that such descriptors can “trigger racist or disparaging views” in a way that evades overtly racial language but taps into deeply rooted stereotypes about Black male physicality and dangerousness.
3. No demonstrated reliance by the district court. After reviewing the record, the panel concludes that nothing indicates that the district court was actually influenced by these size‑related references. There is no sign that the court cited Bland’s physical appearance as a factor under § 3553(a) or otherwise relied on it in deciding the sentence. Accordingly, the panel finds no procedural error and no abuse of discretion in the sentence ultimately imposed.

In effect, the panel sends a pointed warning to prosecutors about the use of such rhetoric while stopping short of finding reversible error in this particular case.

D. Impact and Implications

1. Practical Consequences for Plea Negotiations and Sentencing Advocacy

The decision has several practical implications for prosecutors and defense counsel:

• Government cannot “game” stipulated ranges via speculative time‑credit arguments. Where the parties stipulate that neither will “suggest in any way” a sentence outside a particular Guidelines range, the Government cannot:
  • recommend a sentence near the top of the range,
  • point out that, due to anticipated First Step Act credits and RDAP reductions, the defendant will serve far less time than the nominal sentence, and
  • imply that the court should therefore impose a higher sentence to compensate.
  Doing so is a breach, even if the Government never utters an explicit number above the top of the range.
• Disclaimers are insufficient. Under Amico, Vaval, and now Bland, the Government cannot avoid breach by adding disclaimers such as “we are not asking for a sentence above 63 months.” Courts will “carefully study” such statements in context and look to the practical effect of the advocacy.
• Defense counsel must object contemporaneously. Because unpreserved breaches are reviewed only for plain error, defense counsel should:
  • carefully monitor the Government’s sentencing advocacy for implicit upward‑variance arguments or improper reliance on speculative credits; and
  • object on the record, explicitly invoking the plea agreement and requesting relief (e.g., specific performance, a new sentencing hearing, or reassignment to a different judge).
  Timely objections preserve de novo review and strengthen the defendant’s position on appeal.

2. Clarification of First Step Act Credits in Sentencing

While the key doctrinal move occurred in James, Bland applies that reasoning to prosecutorial advocacy. The combined effect is to draw a clear line in the Second Circuit:

• Neither courts nor prosecutors may lengthen a sentence simply because the First Step Act or BOP programs may reduce actual time served.
• Any consideration of such post‑sentencing administrative reductions must be tightly and “meaningfully” linked to recognized § 3553(a) factors (for example, a defendant’s rehabilitative potential), and even then remains delicate and constrained.
• Arguments aimed at “neutralizing” congressional incentives (like earned‑time credits) by ratcheting up nominal sentences are disfavored as inconsistent with both statute and fairness.

This has structural implications: it preserves the integrity of the legislative scheme behind the First Step Act and RDAP by ensuring that courts do not systematically offset those incentives at the time of sentencing.

3. Implicit Bias and Descriptive Rhetoric at Sentencing

Although Bland does not result in a resentencing on bias grounds, its discussion of size‑related descriptors has forward‑looking significance:

• It signals to prosecutors that focusing on a defendant’s physical size or appearance—especially where that description may resonate with racial stereotypes—will be subject to scrutiny and may, in other cases, support a remand.
• It reinforces a broader jurisprudential trend, reflected in Buck, Leung, and Fiore, that the justice system must not only avoid actual bias, but also avoid the appearance that race or immutable traits have influenced sentencing.
• Judges may be more inclined to question, on the record, the relevance of descriptive rhetoric that seems to rely on or invoke stereotypes, thereby building a clearer record and discouraging such advocacy.

4. Appellate Review, Plain Error, and the Future After James and Bland

Perhaps the most subtle implication of Bland concerns the evolving “plainness” of similar errors going forward:

• At the time of Bland’s sentencing, James had not yet been decided, so the impropriety of using earned‑time credits as a stand‑alone upward‑sentencing factor was not “clearly established.” Hence, no plain error.
• Now that James is on the books—and Bland expressly characterizes such reliance as “always improper”—courts and prosecutors in the Second Circuit are on clear notice. Future invocations of speculative First Step Act credits as a basis for lengthening sentences are much more likely to be deemed “plain” errors, perhaps even satisfying the fourth prong when they taint plea agreements.
• Similarly, the panel’s candid discussion of size‑related stereotypes and racialized perceptions may influence how future panels evaluate claims that such rhetoric affected sentencing. Over time, what is considered plainly impermissible advocacy may expand.

In short, Bland illustrates how even a non‑precedential summary order can contribute to the practical development of the law by clarifying how existing precedents will be applied in concrete settings.

IV. Complex Concepts Simplified

• Plea Agreement. A negotiated contract between the defendant and the Government: the defendant typically agrees to plead guilty and waive certain rights; the Government offers concessions (e.g., charge reductions, sentencing recommendations). Its terms are interpreted like a contract and construed strictly against the Government.
• Appellate Waiver. A clause in a plea agreement where the defendant agrees not to appeal (or collaterally attack) a sentence within specified bounds. Generally enforceable, but not if the Government breaches the deal or the sentence is based on impermissible factors like race.
• Sentencing Guidelines Range. A range of months calculated under the U.S. Sentencing Guidelines based on the offense level and criminal history. In Bland, the stipulated range was 51–63 months.
• First Step Act Earned‑Time Credits. Under the First Step Act, certain federal prisoners can earn credits by participating in rehabilitative or recidivism‑reduction programs. These credits may reduce the term of imprisonment or accelerate placement in pre‑release custody, but their award and effect are discretionary and administered by the BOP, not the sentencing judge.
• RDAP (Residential Drug Abuse Program). A BOP program; successful completion can lead to up to a one‑year reduction in sentence under 18 U.S.C. § 3621(e)(2)(B) for eligible inmates. However, regulations (e.g., 28 C.F.R. § 550.55(b)) exclude certain categories of offenders, including those whose current offense involved a firearm.
• Plain Error Review. A demanding standard applied on appeal when the defendant did not object at trial or sentencing. The defendant must show (1) error, (2) that is clear or obvious, (3) that affected substantial rights (likely changing the outcome), and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• Procedural vs. Substantive Reasonableness.
  • Procedural reasonableness concerns the method: correct calculation of the Guidelines, proper consideration of § 3553(a), avoidance of clearly erroneous facts, and adequate explanation of the sentence.
  • Substantive reasonableness concerns the outcome: whether the length and conditions of the sentence are justified in light of the statutory factors and fall within the range of permissible decisions.
• Upward Departure vs. Upward Variance.
  • An upward departure is a sentence above the Guidelines range based on specific departure provisions in the Guidelines.
  • An upward variance is a sentence outside the Guidelines range based on the sentencing judge’s independent weighing of § 3553(a) factors, after calculating the Guidelines.
  • In either case, if the Government promised not to “suggest in any way” a sentence above a stipulated range, urging the court to go higher—explicitly or implicitly—can be a breach.
• Constitutionally Impermissible Sentencing Factors. Characteristics like race, ethnicity, national origin, religion, and other protected attributes may not be used to increase punishment. Even the appearance that such factors influenced sentencing can justify remand.

V. Conclusion

United States v. Bland is formally a non‑precedential summary order, but its substance sends a clear message:

• The Government must honor both the letter and spirit of plea agreements. Implicit “winking” advocacy for sentences beyond stipulated ranges—particularly through speculative references to First Step Act credits and RDAP—constitutes a breach.
• It is “always improper” for prosecutors to use potential served‑time reductions as a stand‑alone basis for urging a longer sentence; any consideration of credits must be tightly tethered to § 3553(a), and even then is limited.
• Descriptive rhetoric about a defendant’s physical stature, especially when it risks reinforcing racial stereotypes, is fraught and can bring a sentence perilously close to the line where “even the appearance” of bias requires resentencing.
• Nonetheless, relief on appeal is constrained by the demanding plain‑error standard. Absent a timely objection and a clear showing of prejudice, even serious governmental missteps may not lead to reversal.

In the broader legal landscape, Bland underscores the importance of vigilance at sentencing—by defense counsel, prosecutors, and judges alike—to ensure that plea agreements are scrupulously honored, statutory constraints (such as those in the First Step Act) are respected rather than undermined, and implicit biases are not allowed to distort the administration of criminal justice.