Reaffirming Deference to Sentencing Courts: Above-Guidelines Variance Upheld for Aggravated NFA Possession Involving Discharge and Protective-Order Violations

Introduction

In United States v. Englehardt, No. 24-2257-cr (2d Cir. Sept. 29, 2025) (summary order), a panel of the U.S. Court of Appeals for the Second Circuit (Judges Wesley, Bianco, and Robinson) affirmed an above-Guidelines sentence imposed on a defendant who pleaded guilty to possessing unregistered National Firearms Act (NFA) firearms and silencers, in violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871. The district court (Williams, J., D. Conn.) imposed 60 months’ imprisonment—14 months above the advisory range of 37–46 months—based on aggravating facts: the defendant’s threatening use and discharge of a firearm in a domestic context and prolonged noncompliance with a court protective order requiring surrender of all firearms and ammunition.

On appeal, the defense challenged both procedural and substantive reasonableness. Procedurally, the defendant argued the district court failed to consider his history and characteristics under 18 U.S.C. § 3553(a)(1), including a difficult upbringing, lack of any criminal history or history of violence, and post-offense rehabilitation addressing mental health and substance use. Substantively, he argued the variance was excessive. Because the procedural objection was not preserved, the Second Circuit reviewed it for plain error; the substantive claim was reviewed for abuse of discretion.

Although this is a summary order with no precedential effect under FRAP 32.1 and Local Rule 32.1.1, the decision is a useful application of well-settled principles governing sentencing appeals. It underscores the robust deference afforded to district judges’ balancing of § 3553(a) factors, the presumption that those factors have been considered absent contrary indications, and the circumstances in which an above-Guidelines sentence is adequately justified.

Summary of the Opinion

The Second Circuit affirmed the 60-month sentence. On procedural reasonableness, the court held there was no error—plain or otherwise. The sentencing transcript showed the district judge expressly considered the defendant’s mitigation (mental health and substance abuse treatment, lack of criminal history, and absence of actual violence committed with the weapons), but reasonably concluded those considerations were outweighed by the seriousness of the conduct, including discharging a rifle into a bedroom ceiling during a domestic dispute and the defendant’s decision to retain prohibited firearms for a prolonged period despite a protective order, surrendering only some weapons.

On substantive reasonableness, the court held that the district court’s justifications could bear the weight assigned to them under the totality of the circumstances. While emphasizing that non-Guidelines sentences are not presumed unreasonable and that no rigid mathematical test applies to the size of a variance, the panel concluded that the aggravating facts cited by the district court—threatening use and discharge, and extended noncompliance with a protective order—amply supported the 14-month upward variance, which aimed to promote respect for the law, deter similar conduct, and protect the public.

Analysis

Precedents Cited and Their Role

United States v. Yilmaz, 910 F.3d 686 (2d Cir. 2018) (per curiam): Reiterates the deferential abuse-of-discretion framework for reviewing sentences for procedural and substantive reasonableness. This frames the appellate posture: the Second Circuit does not reweigh § 3553(a) factors but reviews for reasonableness.
United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007): Establishes that unpreserved procedural objections are reviewed for plain error, a demanding standard that significantly narrows the path to reversal. The court applies this to the defendant’s claim that the district court overlooked mitigation under § 3553(a)(1).
United States v. Balde, 943 F.3d 73 (2d Cir. 2019): Articulates the four-prong plain error test: clear error, effect on substantial rights, and an error that seriously affects the fairness, integrity, or public reputation of judicial proceedings. The panel’s conclusion that the record refutes any failure to consider mitigation essentially forecloses plain error.
United States v. Smith, 949 F.3d 60 (2d Cir. 2020): Defines procedural error (e.g., failure to calculate the Guidelines, treating them as mandatory, failing to consider § 3553(a), relying on clearly erroneous facts, or inadequate explanation). The panel finds none here.
United States v. Smith, 982 F.3d 106 (2d Cir. 2020) (per curiam): Presumes that the sentencing judge considered all relevant § 3553(a) factors unless the record suggests otherwise. Key to rejecting the defendant’s contention that his mitigation was ignored.
United States v. Rosa, 957 F.3d 113 (2d Cir. 2020): Confirms a district court need not address every argument or discuss each § 3553(a) factor individually. This supports the sufficiency of the district court’s explanation even without exhaustive commentary on every mitigation point.
United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc): Central to substantive reasonableness review. It instructs appellate courts not to substitute their own weighing of factors and to avoid rigid formulas tied to the percentage variance. It also asks whether the factors, as explained, can bear the assigned weight under the totality of circumstances. The panel applies Cavera to sustain the variance.
United States v. Park, 758 F.3d 193 (2d Cir. 2014) (per curiam): States the demanding “shockingly high/low” or otherwise unsupportable test for substantive unreasonableness. The 60-month sentence did not approach this bar given the aggravating facts.
United States v. Stewart, 590 F.3d 93 (2d Cir. 2009): Clarifies that non-Guidelines sentences are not presumed unreasonable and do not require “extraordinary circumstances.” This undermines any suggestion that an above-Guidelines sentence needs special justification beyond an adequate explanation under § 3553(a).
United States v. Ceasar, 10 F.4th 66 (2d Cir. 2021): Emphasizes the totality review and that “a major departure should be supported by a more significant justification than a minor one” while eschewing mathematical rigidity. The district court gave a fact-specific justification tied to seriousness, deterrence, and respect for law.
United States v. Florez, 447 F.3d 145 (2d Cir. 2006): Confirms that the weight assigned to a § 3553(a) factor is for the sentencing judge, and that appellate review does not reweigh those considerations so long as the sentence is reasonable.

Legal Reasoning

The Second Circuit proceeds in two steps: procedural reasonableness, then substantive reasonableness. On procedure, because the defense did not object at sentencing that the court failed to consider mitigation, the panel reviewed for plain error. The record belied any failure to consider § 3553(a)(1) history and characteristics. The sentencing judge:

Acknowledged and credited the defendant’s participation in rehabilitation for long-untreated mental health and substance abuse issues, while questioning whether those issues explained the “extended period of noncompliance” with a protective order requiring surrender of firearms and ammunition (App’x 100).
Agreed that lack of criminal history and the absence of actual violence were “well-taken” points, but explicitly stated that sometimes a person’s lack of history does not outweigh the seriousness of the conduct, thereby confirming that the court was weighing mitigation against aggravation (App’x 123).
Reiterated when pronouncing sentence that mitigation was considered but insufficient in light of the facts that the defendant retained multiple prohibited firearms for a “lengthy period,” chose to surrender only some, and engaged in threatening conduct including discharging a weapon in a domestic setting (App’x 132–34).

Under Smith (982 F.3d 106), sentencing courts are presumed to consider all relevant § 3553(a) factors; Rosa confirms that judges need not recite each argument or factor. The panel therefore found no procedural error, much less a clear or obvious one satisfying Balde’s plain error standard.

On substance, applying Cavera and Park, the court evaluated whether the district court’s reasons could support the extent of the variance. The panel emphasized:

The offense “easily and significantly distinguished” itself from mere possession because the defendant threatened the weapon’s use and fired a rifle into a bedroom ceiling during a domestic incident, creating extraordinary risk (App’x 133).
The defendant’s prolonged noncompliance with a protective order to surrender firearms, coupled with choosing to surrender only some weapons, demonstrated disregard for the law warranting enhanced punishment for deterrence and protection of the public (App’x 133–34).
The district court expressly tied its variance to statutory objectives: promoting respect for the law, deterring the defendant and others, and protecting the public, while ensuring the sentence was no more punitive than necessary (App’x 133–34).

This fact-specific explanation, the panel concluded, met Ceasar’s expectation that greater variances be supported by stronger justifications, without running afoul of Cavera’s admonition against rigid percentage-based analysis. The 14-month upward variance (from a top of 46 to 60 months) was not “shockingly high,” and thus not substantively unreasonable.

Impact and Implications

Although non-precedential, the order has practical significance in several ways:

Aggravated possession conduct matters: Even where the conviction is for possession of unregistered NFA firearms/silencers, threatening use, actual discharge, and violation of a protective order can justify an above-Guidelines sentence. The line between “mere possession” and possession colored by dangerous conduct is decisive at sentencing.
Protective-order violations are potent aggravators: Prolonged noncompliance—and selective surrender of some firearms—can be weighty factors supporting upward variances to promote respect for the law and public safety.
Mitigation will be credited but may not control: Lack of criminal history, mental health, and post-offense rehabilitation were recognized, yet reasonably outweighed by seriousness of conduct. The case illustrates that mitigation does not compel a within-Guidelines sentence.
Preservation is critical: Unpreserved procedural challenges face the formidable plain error standard. Defense counsel seeking robust procedural review should object contemporaneously if they believe the court failed to consider a key § 3553(a) factor or to explain a variance.
Variances need reasoned explanations, not exhaustive treatises: District courts need not catalog every argument; a coherent, case-specific rationale connecting facts to § 3553(a) aims suffices, even for upward variances.
Appellate waiver nuance: The opinion notes that Englehardt’s appeal was not barred because his appellate waiver covered sentences at or below the advisory range; receiving a sentence above the range preserved his right to appeal. Drafting and reading waivers with care remains essential.

In the broader landscape of firearms sentencing, including NFA matters and cases with domestic-violence contexts, Englehardt underscores a public-safety orientation: when possession offenses are intertwined with threatening conduct and defiance of judicial orders, upward variances are likely to withstand appellate scrutiny.

Complex Concepts Simplified

National Firearms Act (NFA) possession: The NFA regulates certain “Title II” weapons (e.g., machine guns, short-barreled rifles/shotguns, silencers). Possession of such items is unlawful unless registered; 26 U.S.C. § 5861(d) criminalizes possession of an unregistered NFA weapon.
United States Sentencing Guidelines (Guidelines): Advisory ranges calculated from offense severity and criminal history. Judges must consider the Guidelines but may vary based on statutory factors in 18 U.S.C. § 3553(a).
Variance vs. departure: A “departure” uses Guideline-authorized adjustments; a “variance” is a non-Guidelines sentence imposed under § 3553(a) considerations. The sentence here is an above-Guidelines variance.
§ 3553(a) factors: Statutory considerations guiding sentencing, including the nature and circumstances of the offense; the defendant’s history and characteristics; the need for punishment, deterrence, protection of the public, and rehabilitation; the Guidelines; and the need to avoid unwarranted disparities.
Procedural vs. substantive reasonableness: Procedural focuses on method (correct calculation, consideration of factors, adequate explanation). Substantive asks whether, under all the circumstances, the length of the sentence is reasonable.
Plain error review: For unpreserved objections, reversal requires a clear/obvious error that affects substantial rights and seriously undermines the fairness or integrity of proceedings—an exacting standard.
“Shockingly high” standard: A sentence is substantively unreasonable only if it is shockingly high/low or otherwise unsupportable by law—underscoring the deference appellate courts afford district judges.
Summary order: Disposition without precedential effect in the Second Circuit (though citable per FRAP 32.1/Local Rule 32.1.1). Such orders often apply settled law to specific facts and can be persuasive.
Appellate waiver carve-out: A plea-agreement waiver of appeal rights may not bar appellate review when the sentence exceeds a specified cap tied to the advisory range, as occurred here.

Conclusion

United States v. Englehardt is a careful application of settled sentencing principles. The Second Circuit found no procedural error where the record showed explicit consideration of mitigation and a reasoned explanation for weighing it against serious aggravating facts. Substantively, the court affirmed a modest upward variance supported by a direct nexus to § 3553(a) goals—deterrence, respect for law, and public protection—based on the defendant’s threatening conduct (including discharging a firearm in a domestic setting) and sustained disregard of a protective order.

While non-precedential, the order reinforces three enduring guideposts for federal sentencing:

The presumption that district courts consider all § 3553(a) factors unless the record suggests otherwise.
The necessity—but not excess—of explanation: judges must articulate reasons sufficient to support a variance, yet need not address every argument seriatim.
The high threshold for overturning sentences on substantive reasonableness grounds, particularly where aggravating facts justify a departure from the advisory range.

In cases involving NFA possession intertwined with domestic incidents and court-order noncompliance, Englehardt signals that above-Guidelines sentences, tied to concrete § 3553(a) rationales, will likely be sustained on appeal.