by Douglas Ankney

The United States Court of Appeals for the Second Circuit held that the U.S. District Court for the District of Connecticut plainly erred by increasing the defendant’s sentence, partly for not helping recover trafficked firearms and by invoking three circumstances used to calculate the Guidelines range without giving a case-specific reason for treating them as unusually serious. The Court vacated the sentence and directed that another judge conduct resentencing because reassignment was necessary “to preserve the appearance of justice.”

Background

Stefan Bagley, Jr. purchased 21 firearms. Investigators found evidence that he removed serial numbers and transferred guns to people legally barred from possessing them. His messages also showed that he proposed a staged robbery, apparently to account for the missing firearms. Bagley pleaded guilty to firearm-trafficking conspiracy in violation of 18 U.S.C. § 933(a)(3) and (b).

The District Court adopted a criminal-history category of I and a total offense level of 24. The calculation added four levels under Guidelines § 2K2.1(b)(1)(B) for between eight and 24 firearms, four under § 2K2.1(b)(4)(B)(i) for an obliterated serial number, and five under § 2K2.1(b)(5)(C) for knowing transfers to prohibited recipients. After a three-level reduction for acceptance of responsibility, the advisory range was 51 to 63 months. The Government requested 54 months, but the District Court imposed 84 months’ imprisonment and three years of supervised release.

In explaining the variance, the District Court stressed the seriousness of the crimes, Bagley’s principal role, the serial-number removal, the prohibited recipients, and the danger created by unrecovered guns. It also stated orally that recovered firearms had been found through investigations of other crimes, not through Bagley’s assistance. Its written reasons similarly stated: “The only firearms since recovered have been due to law enforcement investigations of OTHER crimes (and NOT Defendant’s efforts).” Bagley argued on appeal that the District Court punished his noncooperation and inadequately explained its reliance on facts already reflected in the Guidelines range.

Analysis

The Court began its analysis by applying plain-error review because Bagley had not preserved these objections at sentencing. United States v. Cossey, 632 F.3d 82 (2d Cir. 2011). It stated that a defendant must show a clear or obvious error affecting substantial rights and, finally, that “the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258 (2010). Procedural unreasonableness includes reliance on clearly erroneous facts and an inadequate explanation for a Guidelines deviation. Gall v. United States, 552 U.S. 38 (2007). 18 U.S.C. § 3553(c)(2) also requires specific written reasons for a sentence outside the range. The Court noted that a major variance requires a more substantial justification than a minor variance, and the explanation must support the variance’s magnitude. Gall; United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc); United States v. Singh, 877 F.3d 107 (2d Cir. 2017). Notably, Bagley’s sentence exceeded the top of the range by 21 months and the Government’s request by 30 months.

Failure to Assist
Law Enforcement

The Court first addressed the use of Bagley’s noncooperation as a sentencing factor. It reaffirmed that “increasing the severity of a sentence for a defendant’s failure to cooperate is an impermissible enhancement, warranting vacatur,” whatever motivated the silence. United States v. Sterkaj, 138 F.4th 95 (2d Cir. 2025). Cooperation may support leniency because it can demonstrate rehabilitative potential, but refusal to cooperate cannot support “additional punishment to a defendant who by his silence has committed no additional offense.” United States v. Bradford, 645 F.2d 115 (2d Cir. 1981). The governing distinction is between “refusing to grant leniency” and “punishing a defendant for” remaining silent. United States v. Stratton, 820 F.2d 562 (2d Cir. 1987). The Court explained that the rule protects the Fifth Amendment right against self-incrimination and defendants who remain silent because they fear physical reprisal.

The Court acknowledged that a sentencing court may hear evidence that a defendant did not help recover trafficked guns and may consider crimes committed with recovered weapons and the continuing danger from weapons still missing. Those circumstances bear on offense seriousness. A court may also withhold leniency that cooperation might otherwise support. However, it may not impose an upward variance because the defendant failed to help law enforcement.

The Court concluded that the District Court had crossed the “fine line” between withholding leniency and imposing additional punishment for Bagley’s failure to assist law enforcement. The oral explanation expressly contrasted recoveries made through other investigations with Bagley’s lack of assistance, and the written statement used capitalization to make the same point. Read together, those explanations established that noncooperation contributed at least partly to the increased sentence, the Court determined. Settled Second Circuit law made the error clear. Because the improper consideration helped determine Bagley’s prison term, it prejudiced him and undermined the proceeding’s fairness, the Court concluded.

Aggravating Factors Already Reflected in Guidelines Calculation

The Court next addressed the District Court’s repeated reliance on the number of firearms, obliterated serial numbers, and transfers to prohibited people. Those three adjustments added 13 levels to Bagley’s offense level. When a sentencing court uses considerations incorporated into the Guidelines to support an upward variance, it “must articulate specifically the reasons that this particular defendant’s situation is different from the ordinary situation covered by the Guidelines calculation.” United States v. Sindima, 488 F.3d 81 (2d Cir. 2007), superseded on other grounds, as recognized in United States v. Smith, 949 F.3d 60 (2d Cir. 2020).

The Court found no recognition that the three enhancements had already accounted for those facts and no case-specific reason for treating them as unusually aggravating. That omission was procedural error, particularly in light of the substantial variance. The presentence report clearly identified each enhancement, and the sentencing explanations expressly highlighted the same considerations. Thus, the error was plain and prejudicial, according to the Court. A deficient sentencing explanation may constitute plain error, and reliance on an improper consideration affects substantial rights when there is a reasonable probability it contributed to the variance. United States v. Rosa, 957 F.3d 113 (2d Cir. 2020); United States v. Dralle, 175 F.4th 374 (2d Cir. 2026).

The Government pointed to independent aggravating circumstances, including Bagley’s principal role and his proposal to stage a robbery. The Court could not determine how much of the variance was based on those permissible considerations and how much was attributable to facts already counted by the Guidelines. The Court stated that the sentence “could not stand without further explanation even absent the court’s error in punishing Bagley for his failure to cooperate.” It characterized the claim as procedural because it concerned the sufficiency of the explanation; substantive review asks whether adequate reasons justify the degree of variance. Cavera.

Reassignment and
Unresolved Claims

Under Sterkaj and Stratton, the Court ordered reassignment for the noncooperation error. The Court stressed its confidence that the original sentencing judge would comply with the mandate but determined that reassignment remained necessary to protect the appearance of justice.

Conclusion

Accordingly, the Court remanded with instructions that a different judge vacate Bagley’s sentence and resentence him consistently with its opinion. See: United States v. Bagley, 2026 U.S. App. LEXIS 25512 (2d Cir. 2026).  

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