United States v. Bagley, No. 25-606 (2d Cir. Aug. 24, 2026) (Sullivan, Bianco, Robinson (writing); Sullivan, J., dissenting).
The Second Circuit vacated Stefan Bagley’s 84-month sentence for firearm trafficking conspiracy under 18 U.S.C. § 933(a)(3) and (b) — 21 months above the top of his 51–63 month Guidelines range and 30 months above what the Government sought. Judge Robinson’s opinion finds two procedural errors on plain-error review: The district court varied upward because Bagley had not helped law enforcement recover the guns he sold, and it varied upward on three aggravating facts already built into his offense level without explaining why they carried greater-than-usual weight. Judge Sullivan finds no error and dissents.
Background
Bagley, licensed to buy firearms in Connecticut, purchased about twenty guns and resold them. A search of his home turned up a Dremel tool with metal shavings, as well as phone messages to customers about removing serial numbers and photographs of guns with the numbers gone. Bagley knew at least one buyer was on state probation. And he discussed staging a robbery of his own inventory to evade federal authorities. Slip op. at 6. He pleaded guilty to one count.
The court adopted a Guidelines range of 51–63 months. This included a four-level enhancement under U.S.S.G. § 2K2.1(b)(1)(B) (8 to 24 firearms), a four-level enhancement under § 2K2.1(b)(4)(B)(i) (obliterated serial numbers), and a five-level enhancement under § 2K2.1(b)(5)(C) (transfer to prohibited persons). The government asked for 54 months.
The district court varied upward and imposed an 84-month sentence. It stressed that “to the extent that any of [the firearms] have been recovered, it’s not through Mr. Bagley helping law enforcement recover them; it’s because other crimes allegedly were committed and law enforcement in investigating those crimes recovered them.” App’x 140. The court’s written Statement of Reasons (SOR) repeats the point in capitals: “The only firearms since recovered have been due to law enforcement investigations of OTHER crimes (and NOT Defendant’s efforts), which shows the benefits to public safety in the sentence imposed.” Slip. op. 9 (caps in original).
The court also emphasized that the conduct “involved purposeful obliteration of serial numbers” and pointed to Bagley’s knowledge that “the guns were being distributed to prohibited persons.” App’x at 141. The SOR repeats the point: “An upward variance . . . was necessary . . . . Mr. Bagley straw purchased 21 firearms which he then illegally distributed (sometimes after obliterating their seral numbers), and at least sometimes to people he knew were legally prohibited from possessing them.” Slip op. 9.
Bagley did not object.
Ruling
On appeal, Bagley argued that the court punished him for his silence and that it recycled Guidelines factors to justify the variance. Review was for plain error. United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011); United States v. Marcus, 560 U.S. 258, 262 (2010). The panel concluded that the district court twice plainly erred, procedurally, and vacated the sentence.
- Bagley’s failure to assist authorities.
It is beyond cavil that “increasing the severity of a sentence for a defendant’s failure to cooperate is an impermissible enhancement, warranting vacatur,” whatever the defendant’s motivations. United States v. Sterkaj, 138 F.4th 95, 99 (2d Cir. 2025). While cooperation may mitigate as evidence of “potential for rehabilitation,” refusal cannot support “additional punishment to a defendant who by his silence has committed no additional offense.” United States v. Bradford, 645 F.2d 115, 117 (2d Cir. 1981). The line between “refusing to grant leniency” and “punishing a defendant for” silence may be “somewhat illusory,” but “it is the only rule that recognizes the reality of the criminal justice system while protecting the integrity of that system.” United States v. Stratton, 820 F.2d 562, 564 (2d Cir. 1987).
“Here, the court crossed that ‘fine line.'” Slip op. at 14. The oral remark standing alone might have been ambiguous. But the SOR “and its use of uppercase letters to emphasize its point . . . resolves any doubt.” Id.
The panel marked carefully what is permissible: the court can hear evidence that Bagley did not help, can weigh the continuing danger from guns still at large, and can decline to extend leniency it might have given a cooperator. Slip op. at 14–15. But it can’t convert non-cooperation into an upward variance.
- Aggravating factors already baked into the Guidelines.
The three enhancements (number of guns; obliterated serial number; and transfer to prohibited person) added 13 levels to Bagley’s Guidelines offense level, moving the range from 8–14 months to 51–63. Slip op. at 17. Where a court relies on factors already incorporated into the calculation to vary upward, 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, 87 (2d Cir. 2007), superseded on other grounds as recognized in United States v. Smith, 949 F.3d 60, 64 (2d Cir. 2020). Here, the court “neither acknowledged that the above factors were baked into the Guidelines calculation nor explained why they bore greater-than-usual weight in this case.” Slip op. at 18.
Practitioners Notes
First, keep Bagley in the pocket for the next unpreserved sentencing appeal. This is a vacatur of an above-Guidelines sentence on plain error review — with both errors found plain and to affect substantial rights and implicate the fairness and integrity of judicial proceedings.
Second, the Stratton line is fine but real, and Bagley marks a point on that line. The doctrinal rule is unchanged: refusing to grant leniency is permissible for defendant’s failure to cooperate, adding punishment is not.
Third, Sindima’s specific-articulation requirement has teeth. When a court leans on factors “already incorporated into the Guidelines calculation” to vary upward, it “must articulate specifically the reasons that this particular defendant’s situation is different from the ordinary situation covered by the Guidelines calculation.” 488 F.3d at 87.