Refusal to Cooperate Cannot Warrant Upward Sentencing Variance: Continued Vitality of Stratton in the Second Circuit

Introduction

This commentary examines the United States Court of Appeals for the Second Circuit’s decision in United States v. Sterkaj, No. 23-8088-cr (2d Cir. May 23, 2025). The appeal arose from the sentencing component of a conviction entered in the Northern District of New York, wherein the district judge imposed an upward variance because the defendant, Klaudio Sterkaj, refused to cooperate with the Government at sentencing. Sterkaj challenged that variance as procedurally erroneous under the Second Circuit’s binding precedent—United States v. Stratton, 820 F.2d 562 (2d Cir. 1987)—which forbids enhancing a sentence on account of a defendant’s silence or refusal to cooperate. The court was asked to decide: (1) whether Stratton remains good law despite later Supreme Court decisions, and (2) if so, whether the sentence must be vacated and remanded for resentencing.

Summary of the Judgment

The Second Circuit affirmed that a district court cannot impose an upward sentencing variance solely because a defendant declines to cooperate. The panel concluded:

Stratton remains binding precedent. None of the intervening Supreme Court decisions cited by the Government—Salinas v. Texas (2013), Pepper v. United States (2011), or Concepcion v. United States (2022)—“cast doubt” on the foundational rule of Stratton or break the logical link on which Stratton rests.
The District Court erred. The sentencing judge explicitly increased Sterkaj’s prison term from the 0–6 month Guidelines range to 24 months because Sterkaj “was not willing to cooperate” and thus “had not shown remorse.” That is precisely the sort of impermissible enhancement condemned in Stratton.
Vacatur and Remand. The court vacated the sentence component of the judgment and remanded for resentencing. To preserve the appearance of justice, the case must be reassigned to a different district judge.

Analysis

Precedents Cited

United States v. Stratton, 820 F.2d 562 (2d Cir. 1987): Holds that a district court may not increase a defendant’s sentence because of the defendant’s refusal to cooperate or remain silent. This is binding Second Circuit precedent.
United States v. Rivera, 201 F.3d 99, 101–02 (2d Cir. 1999): Reaffirmed Stratton’s rule in the sentencing context.
United States v. Whitten, 610 F.3d 168, 195 (2d Cir. 2010): Further applied Stratton to bar sentencing enhancements based on non‐cooperation.
United States v. McKenzie, No. 23-6144, 2024 WL 3594326, at *1–3 (2d Cir. July 31, 2024): The most recent reaffirmation that Stratton remains good law.
Salinas v. Texas, 570 U.S. 178 (2013): Requires an explicit invocation of the Fifth Amendment privilege. Held inapplicable to undermine Stratton, since Stratton is not confined to the Fifth Amendment context.
Pepper v. United States, 562 U.S. 476 (2011): Permits consideration of post-sentencing evidence of rehabilitation on resentencing. Does not affect Stratton’s bar on upward variances for non‐cooperation at initial sentencing.
Concepcion v. United States, 597 U.S. 481 (2022): Addresses First Step Act resentencing discretion. Reaffirms the broad range of information sentencing courts may consider but does not authorize upward variances for silence.

Legal Reasoning

The court followed a two-step framework:

Check whether Stratton remains binding. Under Second Circuit rules, a panel must follow circuit precedent unless (a) the Supreme Court has overruled it; (b) the court en banc has reconsidered it; or (c) an intervening Supreme Court decision “casts doubt” on the prior rule by undermining its logic or assumptions. None of the intervening decisions cited by the Government met that threshold.
Apply Stratton to the facts. The sentencing judge openly punished Sterkaj for refusing to cooperate. That is the precise conduct Stratton forbids: “impermissible enhancement” based on silence or non‐cooperation, which “regardless of [a defendant’s] motivations” cannot justify a higher sentence.

Because the District Court’s upward variance contravened Stratton, it was procedurally unreasonable and warranting vacatur.

Impact

This decision reinforces the Second Circuit’s unwavering stance that defendants cannot be penalized for exercising silence or refusing to cooperate at sentencing. It sends three clear messages:

Sentencing limitations. District judges must not factor in non‐cooperation as an aggravating element in sentencing calculations.
Fidelity to precedent. Even broad language about “wide discretion” in Supreme Court cases does not override a specific circuit rule that non‐cooperation is off‐limits.
Procedural fairness. To maintain public confidence, when an upward variance for silence occurs, resentencing should be conducted by a different judge.

Future cases in the Second Circuit will look to Sterkaj as the latest reaffirmation of the immutable Stratton principle.

Complex Concepts Simplified

Upward Variance: A judge’s decision to lengthen a defendant’s prison term beyond the recommended Guidelines range.
Non-Cooperation: When a defendant declines to share information or assist the Government (often via a “proffer” session).
Binding Precedent: A published decision by the Second Circuit that must be followed by later panels unless formally overruled.
“Casting Doubt” Exception: A narrow rule allowing a panel to depart from circuit precedent only if a Supreme Court decision fundamentally undermines the earlier rule’s rationale.
Procedural Unreasonableness: Sentencing error arising from improper factors, insufficient explanation, or failure to follow required steps.

Conclusion

The Second Circuit’s decision in United States v. Sterkaj reaffirms that a defendant’s refusal to cooperate cannot serve as a basis for an upward sentencing variance in this Circuit. Stratton remains binding and unshaken by subsequent Supreme Court rulings. As a result, the court vacated Sterkaj’s sentence and ordered a resentencing before a different judge to preserve both substantive and procedural fairness. This ruling cements the principle that silence and non-cooperation are protected choices, free from punitive sentencing ramifications.