Reaffirming a Particularly Deferential Substantive Reasonableness Review: Second Circuit Upholds High-End Guidelines Sentence Despite Lower Recommendations and Aggregate Disparity Data

Note: This is a commentary on a non-precedential summary order. While not binding authority, the order synthesizes and applies established Second Circuit principles, offering practical guidance for litigants and sentencing courts.

Introduction

In United States v. Nikoghosyan, No. 23-6729-cr (2d Cir. Sept. 30, 2025) (summary order), a Second Circuit panel (Wesley, Bianco, Robinson, JJ.) affirmed a 96-month sentence imposed on a defendant who pled guilty to two counts of conspiracy to commit Hobbs Act extortion, 18 U.S.C. § 1951(a), and one count of felon-in-possession of a firearm, 18 U.S.C. §§ 922(g)(1), 924(a)(2). The appellant’s sole claim was that his sentence—at the top of the advisory Guidelines range of 77–96 months—was substantively unreasonable.

The case arises from the defendant’s role in the “KavKaz” gang in Brooklyn. In 2021, he threatened two victims, personally and through others at his direction, to extract payments or compel participation in his drug operations, including explicit threats to inflict severe physical harm. A search of a residence used by the defendant yielded a Hi-Point 995 rifle, over 40 rounds of ammunition, and narcotics; his status as a felon rendered firearm possession illegal.

On appeal, the defendant argued that the district court overemphasized aggravating factors (violence, gang activity, uncharged criminal conduct) and undervalued mitigation (substance abuse, acceptance of responsibility and avoidance of a Fatico hearing, family/community support, contrition, and harsh pandemic-era confinement). He also contended that the sentence exceeded both the Probation Office’s recommendation (77 months) and the government’s recommendation (86 months), and was disparate relative to extortion sentences generally in the Eastern District of New York and nationwide.

Summary of the Opinion

Applying its “particularly deferential” abuse-of-discretion standard for substantive reasonableness review, the Second Circuit affirmed. Relying on established precedents (including Cavera, Muzio, Ingram, and Perez-Frias), the panel held that the district court’s weighing of the 18 U.S.C. § 3553(a) factors—especially the seriousness of the offense, the use and threatened use of violence, gang involvement, uncharged criminal activity, and the defendant’s criminal history with multiple parole violations—fell well within the “range of permissible decisions.” The 96-month sentence was not “shockingly high” or otherwise unsupportable at law.

The court rejected the defendant’s claims that mitigation was minimized, emphasizing that the weight assigned to mitigating and aggravating factors lies squarely within the sentencing judge’s discretion, and that appellate courts do not second-guess such weighing when the sentence is otherwise reasonable and free of procedural error. The court also clarified that neither Probation’s nor the government’s recommendation binds the court. Finally, the court found the defendant’s disparity arguments unpersuasive because they were based on broad, aggregate “Extortion/Racketeering” categories that mix dissimilar offenses and fail to control for individualized factors such as criminal history, parole violations, and companion firearm convictions.

Analysis

Precedents Cited and Their Influence

United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc): Cavera sets the cornerstone for substantive reasonableness review in the Second Circuit: a “deferential abuse-of-discretion” framework under which appellate courts assess whether the sentencing judge’s decision lies within a broad “range of permissible decisions,” and whether the chosen § 3553(a) factors can “bear the weight assigned them.” Here, the panel explicitly invoked Cavera to validate the district court’s heavy emphasis on violence, gang orchestration, and criminal history.
United States v. Muzio, 966 F.3d 61 (2d Cir. 2020): Muzio contributes the oft-quoted metric that appellate courts will reverse only sentences that are “so shockingly high, shockingly low, or otherwise unsupportable as a matter of law” that affirmance would “damage the administration of justice.” The panel applied Muzio to conclude a top-of-Guidelines sentence in this violent, gang-related extortion scheme—paired with a firearm offense—was not “shockingly high.”
United States v. Ingram, 721 F.3d 35 (2d Cir. 2013) (per curiam): Ingram underscores the non-substitution principle: appellate courts do not replace the district court’s judgment about what satisfies § 3553(a) with their own. The panel relied on this to reject arguments asking it to reweigh mitigation (substance abuse, contrition, pandemic hardship).
United States v. Perez-Frias, 636 F.3d 39 (2d Cir. 2011) (per curiam): Perez-Frias states that in “the overwhelming majority of cases, a Guidelines sentence will fall comfortably within the broad range of” reasonable outcomes. This primed the analysis: a within-Guidelines, high-end sentence is, as a practical matter, difficult to overturn absent extraordinary circumstances.
United States v. Broxmeyer, 699 F.3d 265 (2d Cir. 2012): Broxmeyer clarifies that the particular weight afforded to aggravating and mitigating factors is the sentencing judge’s prerogative. The panel quoted and applied this to dismiss claims that the district court underweighted mitigation.
United States v. Guldi, 141 F.4th 435 (2d Cir. 2025): Guldi reinforces Broxmeyer’s principle: when a sentence is reasonable and procedurally sound, appellate courts do not second-guess how much weight a judge assigns to a given factor.
United States v. Messina, 806 F.3d 55 (2d Cir. 2015); United States v. Avello-Alvarez, 430 F.3d 543 (2d Cir. 2005): These cases confirm that sentencing recommendations from the Probation Office and the government are non-binding. The panel cited them to reject the argument that the district court’s departure from those recommendations rendered the sentence unreasonable.
United States v. Irving, 554 F.3d 64 (2d Cir. 2009): Irving addresses § 3553(a)(6) disparity arguments, cautioning that aggregate statistics, without case-specific detail, are poor measures of “unwarranted disparity” because they fail to reflect each case’s adjustments and enhancements. The panel relied on Irving to dismiss reliance on broad “Extortion/Racketeering” averages that combine dissimilar offenses and offender profiles.

Legal Reasoning: How the Decision Was Reached

The panel applied a two-part analytic structure characteristic of Second Circuit substantive review post-Booker:

Step One: Identify the applicable standard and its rigor. The court reiterated that substantive reasonableness review is “particularly deferential,” tolerating a wide band of outcomes so long as they can be justified under § 3553(a). Within-Guidelines sentences sit in a “comfort zone” of reasonableness, per Perez-Frias.
Step Two: Evaluate whether the district court’s weighing of § 3553(a) was permissible. The district court emphasized:
- The seriousness of the offense, including credible, violent threats to extract money or labor and the use of others to implement the scheme, reflecting orchestrated gang conduct.
- History and characteristics—a criminal record marred by several parole violations, signaling noncompliance with supervision and heightened need for deterrence and incapacitation.
- Uncharged criminal conduct (drug dealing with the gang) not captured in the Guidelines calculation, an aggravating consideration legitimately considered under § 3553(a).
- The presence of a firearm offense alongside extortion, differentiating this case from “most” extortion-only prosecutions and justifying higher severity.

The panel accepted that the identified § 3553(a) factors could “bear the weight assigned them” (Cavera) and that the top-of-range sentence was not “shockingly high” (Muzio). It also emphasized that the weight accorded to mitigation—including substance abuse disorder, contrition, family/community support, avoidance of a Fatico hearing, and pandemic-era conditions—is entrusted to the sentencing judge (Broxmeyer; Guldi). Absent procedural error, the appellate court would not reweigh.

On disparity, the panel rejected reliance on broad Sentencing Commission “Extortion/Racketeering” averages, which pool different statutes (e.g., Hobbs Act extortion, extortionate credit, blackmail, labor racketeering, contraband cigarettes, etc.) and fail to control for offense level, specific offense characteristics, criminal history, and companion convictions (such as a § 922(g) count). Irving counseled against using such averages to prove unwarranted disparity. The court also noted that Nikoghosyan’s aggravating profile set him apart from the “typical” extortion defendant encompassed by the aggregated statistics.

Impact: What This Decision Signals

Although non-precedential, the order consolidates and applies key Second Circuit sentencing principles in ways that are instructive:

Within-Guidelines, high-end sentences are highly resistant to substantive reasonableness challenges. When a district court ties a top-of-range sentence to serious violence, organized criminal activity, uncharged but reliable conduct, and a history of supervision violations, affirmance is likely.
Mitigating narratives must be both concrete and compelling. Substance abuse, contrition, family support, acceptance of responsibility, and pandemic hardship are recognized forms of mitigation, but appellate review rarely second-guesses the district court’s selection and weighting of these factors when the sentence is otherwise reasoned and within range.
Probation and government recommendations do not cabin the sentencing court. A judge can exceed both recommendations, even while staying inside the Guidelines range, without triggering substantive error.
Disparity arguments require apples-to-apples comparators. Aggregate statistics—especially category-level averages—are weak proof of “unwarranted disparity.” Persuasive disparity showings typically require individualized comparators controlling for Guidelines range, criminal history, offense conduct (including companion counts), and adjustments.
Use of uncharged conduct remains a potent aggravator at sentencing. When reliably found, courts may consider uncharged activities, including drug trafficking within a gang, to justify sentences at the upper end of the range.

Complex Concepts Simplified

Substantive reasonableness: On appeal, courts ask whether the length of the sentence is reasonable in light of § 3553(a) factors (nature of offense, defendant’s history, deterrence, protection of the public, etc.). The Second Circuit will overturn only if a sentence is “shockingly high,” “shockingly low,” or otherwise legally indefensible.
Abuse-of-discretion (particularly deferential) review: This standard gives sentencing judges wide latitude. If the judge considered the right factors and explained the decision, the sentence stands unless it is outside the “range of permissible decisions.”
Guidelines and high-end sentences: The U.S. Sentencing Guidelines are advisory, not mandatory. A sentence at the top of an accurately calculated range is generally considered reasonable absent unusual circumstances.
18 U.S.C. § 3553(a): The statute listing factors a judge must consider at sentencing (e.g., seriousness of the offense, deterrence, protection of the public, defendant’s characteristics, Guidelines policy statements, and avoidance of unwarranted disparities).
Uncharged conduct: Judges may consider conduct not formally charged or not accounted for in the Guidelines calculation if supported by reliable information; this can influence the § 3553(a) analysis and the sentence length.
Fatico hearing: A sentencing hearing (from United States v. Fatico) used to resolve factual disputes relevant to sentencing. Waiving or avoiding a Fatico hearing by admitting facts can reflect acceptance, but the weight the judge gives that step is discretionary.
Hobbs Act extortion: Extortion affecting interstate commerce, including obtaining property through wrongful use of actual or threatened force, violence, or fear. Conspiracy to commit Hobbs Act extortion is itself a federal crime.
Felon-in-possession (18 U.S.C. § 922(g)(1)) and § 924: Prohibits firearm possession by convicted felons. The opinion cites § 924(a)(2) (the applicable penalty provision at the time of the charged conduct, which occurred in 2021). Congress later moved and increased the penalty to § 924(a)(8), but that change does not retroactively govern earlier conduct.
Probation and government recommendations: These are advisory. The sentencing judge may impose a higher or lower sentence than either recommendation if supported by § 3553(a).
Unwarranted disparity (§ 3553(a)(6)): The law seeks to avoid unjustified differences in sentences among similarly situated defendants. But aggregate statistics that mix dissimilar offenses and offender profiles are poor indicators; courts look for case-specific comparators.
Summary order: A non-precedential decision. It may be cited consistent with Fed. R. App. P. 32.1 and local rules but does not bind future panels.

Deeper Discussion of Key Issues

1) Assigning Weight to Mitigation (Substance Abuse, Contrition, Pandemic Conditions)

The panel’s treatment of mitigation underscores an important practical reality: while defendants can present compelling mitigation, appellate courts generally defer to the district court’s qualitative assessment of that evidence. Here, the defendant’s substance abuse disorder, acceptance of responsibility (including eschewing a Fatico hearing), community support, and sincere contrition were acknowledged but not credited enough to move the sentence off the high end. The panel’s reliance on Broxmeyer and Guldi signals that disagreements over the “right” weight for those mitigating factors rarely yield reversals, particularly where countervailing aggravators include organized violence, weapon possession, and failed supervision.

Pandemic-era confinement conditions are a recognized consideration in many district courts, but the panel reiterates they are not a mandatory basis for a reduced sentence. District judges may, but need not, discount the Guidelines range or select the low end on that basis; appellate courts will not reweigh that judgment absent clear error or procedural misstep.

2) Uncharged Conduct and Gang Activity at Sentencing

The district court expressly considered uncharged drug dealing within the gang as aggravating. That approach aligns with long-standing sentencing practice: judges may consider reliable information about relevant conduct, even if uncharged, to calibrate § 3553(a) factors. The court also pointed to the defendant’s leadership-like behavior (directing others) and willingness to inflict physical harm. These considerations, though not necessarily altering the Guidelines range, can justifiably push a sentence to the top of that range under § 3553(a).

3) The Limits of Statistical Disparity Evidence

Nikoghosyan’s reliance on the Sentencing Commission’s “Extortion/Racketeering” category illustrates a recurring issue: broad categories collapse crucial distinctions among offenses and offenders. The panel, invoking Irving, stressed that such averages are weak evidence of “unwarranted disparity” because they ignore:

Differences in offense conduct (e.g., threats of severe physical harm versus non-violent blackmail),
Companion convictions (such as a § 922(g) firearm offense),
Criminal history and supervision violations, and
Guidelines adjustments and enhancements not apparent in topline statistics.

Defense counsel asserting disparity would be better served by presenting narrow, apples-to-apples comparators—ideally within the same district or circuit—matched by Guidelines range, criminal history category, offense specifics, and aggravators.

4) Exceeding Probation and Government Recommendations

The court’s reminder that neither Probation’s nor the government’s suggested sentence binds the judge is significant. District courts remain free to select any reasonable sentence supported by § 3553(a), including the top of the range, even when both institutional actors recommend less. This underscores the importance of tailoring mitigation arguments directly to the judge’s articulated concerns, not merely aligning with institutional recommendations.

Practical Implications

For defense counsel:
- Develop concrete, individualized disparity comparators rather than category-level averages.
- Present robust, corroborated mitigation (treatment plans, verified rehabilitation, expert evaluations) that directly addresses the court’s public safety and deterrence concerns.
- When uncharged conduct looms, contest reliability where appropriate, or contextualize it to mitigate its weight under § 3553(a).
- Be realistic about the deference on appeal; many mitigation disputes are resolved at sentencing, not on appeal. Building a persuasive record for the sentencing judge is crucial.
For prosecutors:
- Document aggravating facts with reliable sources (victim statements, corroborated proffers, physical evidence) to support high-end placements.
- Anticipate and address disparity claims by explaining why proposed comparators are not apples-to-apples (e.g., no firearm count, lower criminal history, absence of threats).
For district judges:
- Articulate the § 3553(a) rationale with enough specificity to show that the key factors “bear the weight assigned them,” particularly when selecting the high end.
- When rejecting disparity arguments, briefly explain why the comparators are inapt (offense mix, enhancements, CHC), which can insulate the sentence on appeal.

Conclusion

United States v. Nikoghosyan reinforces core themes of Second Circuit sentencing jurisprudence. Substantive reasonableness review remains highly deferential, especially for within-Guidelines sentences. The panel accepted the district court’s emphasis on violence, gang coordination, uncharged drug conduct, and a problematic supervision history, and it declined to reweigh mitigation or to elevate non-binding recommendations above the judge’s independent judgment. It also signaled skepticism toward reliance on broad statistical averages to demonstrate unwarranted disparities, insisting on individualized, like-for-like comparisons.

For practitioners, the decision underscores that the battle over sentence length is largely won or lost in the district court through targeted, reliable evidence and case-specific argumentation. On appeal, a well-explained, high-end within-Guidelines sentence tied to serious aggravation will almost always “fall comfortably within the broad range of” reasonable outcomes.