Upward Variances May Not Punish Non‑Cooperation: The Second Circuit Requires Sindima-Specific Findings and Reassignment When Sentencing References Failure to Help Recover Firearms

1. Introduction

In United States v. Bagley (2d Cir. Aug. 24, 2026), the Court of Appeals for the Second Circuit vacated an above-Guidelines sentence imposed after Stefan Bagley, Jr. pleaded guilty to a firearm trafficking conspiracy under 18 U.S.C. § 933(a)(3) and (b). The district court (D. Conn., Williams, J.) sentenced Bagley to 84 months, an upward variance from the advisory Guidelines range of 51–63 months.

The appeal centered on procedural reasonableness: whether the district court (i) impermissibly increased the sentence because Bagley did not assist law enforcement in recovering trafficked guns and (ii) relied on aggravating factors already reflected in the Guidelines calculation without explaining why they warranted extra weight. The majority (Robinson, J., joined by Bianco, J.) held that both errors were plain and required vacatur and remand for resentencing before a different judge; Sullivan, J. dissented.

2. Summary of the Opinion

The Second Circuit held that the district court committed plain procedural error by varying upward “based in substantial part” on Bagley’s failure to help law enforcement recover firearms he had sold. The court further held that the district court also erred by relying on three aggravating facts already “baked into” the Guidelines—(1) the number of firearms, (2) obliterated serial numbers, and (3) sales to prohibited persons—without “articulat[ing] specifically” why those factors had greater-than-usual significance in this case as required by United States v. Sindima.

Because the sentencing record raised appearance-of-justice concerns under Circuit precedent when a sentence is increased for non-cooperation, the panel ordered reassignment to a different judge on remand, citing United States v. Sterkaj and United States v. Stratton.

3. Analysis

3.1. Precedents Cited

A. Procedural reasonableness framework and variance explanation

  • Gall v. United States: Supplies the canonical list of procedural errors (including reliance on clearly erroneous facts and failure to adequately explain a deviation) and requires “more significant justification” for a major variance. The majority uses Gall to emphasize that a 21-month upward deviation from the top of the range demands a robust explanation.
  • United States v. Cavera (en banc): Reinforces that justification must match the magnitude of the variance; supports close review of a steep variance even under deferential sentencing review.
  • United States v. Singh: Quoted for the principle that the district court’s justification must be sufficient “to support the magnitude” of the variance; deployed here to frame the explanatory burden for an 84-month sentence.
  • United States v. Cooper, United States v. Cossey, and United States v. Marcus: These cases supply the standard of review and the four-part plain-error test, which governs because Bagley did not preserve the procedural objections at sentencing.
  • United States v. Rosa and United States v. Dralle: Cited on plain error and prejudice when an inadequate explanation or improper considerations plausibly contributed to a variance.

B. Non-cooperation as an impermissible basis for harsher punishment

  • United States v. Sterkaj: The majority’s central authority, reaffirming that “increasing the severity of a sentence for a defendant’s failure to cooperate” is impermissible and warrants vacatur, and that silence cannot be used to infer aggravating traits (e.g., lack of remorse) where the silence is ambiguous.
  • United States v. Bradford: Establishes the asymmetry: cooperation may be mitigating (evidence of rehabilitation), but refusal to cooperate cannot justify “additional punishment.”
  • United States v. Stratton: Articulates the “fine line” between denying leniency and punishing silence; provides the reassignment remedy when that line is crossed.

C. Double counting / Guidelines-incorporated factors and the need for a specific explanation

  • United States v. Sindima, superseded on other grounds as recognized in United States v. Smith: Controls when a sentencing judge relies on factors already included in the Guidelines calculation to vary upward; the court must “articulate specifically” why the case is meaningfully different from the “ordinary situation” contemplated by the Guidelines. The majority applies Sindima to fault the district court’s failure to acknowledge the enhancements and explain why they deserved additional, above-Guidelines weight.

D. Reassignment to preserve the appearance of justice

  • United States v. Sterkaj and United States v. Stratton: Provide the panel’s basis for ordering reassignment even while expressing confidence that the original judge would follow remand instructions—because the appearance of justice is paramount where impermissible punishment for non-cooperation was a substantial part of the variance rationale.

E. Authorities referenced in the dissent

Judge Sullivan’s dissent relies on a set of procedural and substantive review cases to argue that the majority overreads the record under plain-error review, including: United States v. Vargas, United States v. Alvarado, United States v. Williams, United States v. Bleau, United States v. Esteras, United States v. Ramirez, United States v. Banks, United States v. Villafuerte, DiGiovanni v. United States, United States v. Whitten, and (on substantive reasonableness) United States v. Rigas, United States v. Broxmeyer, Irizarry v. United States, United States v. Sampson, plus several examples affirming above-Guidelines firearm sentences. The majority, however, resolves the case on procedural grounds and does not reach substantive reasonableness.

3.2. Legal Reasoning

A. Why referencing “NOT Defendant’s efforts” crossed the cooperation line

The majority accepts that the district court could consider the danger posed by unrecovered firearms and the fact that recovered firearms were linked to other crimes as aggravating context for the seriousness of gun trafficking. The procedural problem was how the district court framed the variance: the sentencing transcript and Statement of Reasons expressly emphasized that recovered guns were found through investigations of OTHER crimes “(and NOT Defendant’s efforts).” Under United States v. Sterkaj and United States v. Bradford, the Second Circuit treats this as impermissibly converting non-cooperation into an aggravating sentencing factor—i.e., “additional punishment” for silence rather than mere refusal to grant leniency.

The majority also stresses that the defendant’s motivations for silence are irrelevant: the rule protects both Fifth Amendment interests and fear-of-reprisal scenarios identified in United States v. Stratton.

B. Why Sindima required more than restating enhanced factors

Bagley’s Guidelines range already reflected: (1) the number of guns (U.S.S.G. § 2K2.1(b)(1)(B)), (2) obliterated serial numbers (U.S.S.G. § 2K2.1(b)(4)(B)(i)), and (3) sales to prohibited persons / unlawful disposition knowledge (U.S.S.G. § 2K2.1(b)(5)(C)). The district court then relied again on these same considerations to justify an upward variance but did not explain why this case was atypical compared to the “ordinary situation covered by the Guidelines calculation.” Under United States v. Sindima, that missing explanation is procedural error—especially given the “major variance” justification demanded by Gall v. United States.

Importantly, the panel does not hold that Guidelines-incorporated factors can never support a variance; rather, it enforces an articulation requirement: if the court is going to give extra weight to already-counted factors, it must say what makes them unusually weighty here (e.g., scope, duration, sophistication, risk, or harm beyond the enhancement’s typical heartland).

C. Plain error and remedy

Because Bagley did not object, the panel applies the United States v. Marcus plain-error framework. It finds the errors “clear or obvious” under settled Circuit precedent, prejudicial because the impermissible considerations contributed to an above-Guidelines sentence, and harmful to the integrity of the proceeding—requiring vacatur. Under United States v. Sterkaj and United States v. Stratton, the panel orders reassignment to a new judge to preserve the appearance of justice.

3.3. Impact

  • Sharper boundaries in firearm-trafficking sentencing: The decision reinforces that a judge may emphasize the public-safety risk of unrecovered guns, but may not increase a sentence because the defendant did not help recover them. This matters acutely in gun-trafficking cases, where recovery is often difficult and judicial frustration can easily slide into penalizing non-cooperation.
  • Operationalizing Sindima for variances: The opinion strengthens the expectation that judges explicitly identify why an enhancement-factor deserves extra, case-specific weight beyond the Guidelines’ design—reducing the risk that variances become de facto double counting without explanation.
  • Reassignment as a credibility-preserving tool: By reaffirming reassignment where non-cooperation appears to drive sentencing severity, the Second Circuit signals that even the appearance of punishing silence can require a new judge on remand.
  • Appellate record discipline: The case underscores that statements in a written Statement of Reasons can be outcome-determinative in procedural review; here, the panel treated the written emphasis (“NOT Defendant’s efforts”) as resolving any ambiguity in the oral record.

4. Complex Concepts Simplified

  • Guidelines “range” vs. “variance”: The Sentencing Guidelines produce an advisory imprisonment range. A “variance” is a sentence above or below that range based on statutory factors in 18 U.S.C. § 3553(a).
  • Procedural vs. substantive reasonableness: “Procedural” asks whether the court used the right process (correct range, proper factors, adequate explanation). “Substantive” asks whether the length is excessively high/low given the facts. The majority vacated on procedural grounds and did not reach substantive reasonableness.
  • Plain-error review: When the defendant did not object at sentencing, the appellate court reverses only for an obvious error that likely affected the outcome and harms the judicial system’s integrity.
  • Non-cooperation rule: A court may reward cooperation (mitigation), but may not punish silence by adding time because the defendant refused to assist law enforcement.
  • Factors “baked into” the Guidelines: If an aggravating fact already increased the Guidelines range via an enhancement, a judge can still consider it again, but must explain why it is unusually significant in the particular case (Sindima requirement).
  • Reassignment on remand: Even if the original judge is capable of resentencing fairly, appellate courts sometimes order a new judge to maintain public confidence when the original sentencing rationale creates an appearance problem.

5. Conclusion

United States v. Bagley reinforces two practical sentencing rules in the Second Circuit: (1) an upward variance may not be based on a defendant’s failure to assist law enforcement (including efforts to recover trafficked firearms), and (2) when varying upward based on conduct already accounted for by Guidelines enhancements, the court must specifically explain why those factors deserve extra weight under United States v. Sindima. When the sentencing record suggests impermissible punishment for non-cooperation, the Second Circuit’s remedial approach—rooted in United States v. Sterkaj and United States v. Stratton—includes reassignment to preserve the appearance of justice.