In United States v. Sterkaj, the Second Circuit (Cabranes, Raggi, and Nathan) vacated a sentence imposed on Klaudio Sterkaj because it represented an impermissible upward variance under United States v. Stratton, 820 F.2d 562 (2d Cir. 1987), which holds that district courts may not use a defendant’s refusal to cooperate to justify increasing the sentence imposed.
In so doing, the Court reaffirmed that it generally cannot ignore binding precedent in the absence of en banc reconsideration or a subsequent Supreme Court decision overturning that precedent. And while the panel recognized that an exception to that general rule exists, it confirmed that the exception may only be invoked if an intervening Supreme Court decision breaks the link upon which the precedent at issue was premised. As such, the exception is narrow and rarely applicable, and it was not triggered in the instant case.
Finally, the Court ordered that the case be assigned to a different judge for resentencing on remand, given the panel’s concerns about maintaining the appearance of justice.
Background
In 2022, Sterkaj was operating a vehicle that was stopped by New York State Police, who determined that his two passengers were Albanian citizens who entered the United States illegally from Canada. The Government subsequently filed a criminal complaint against him on July 11, 2022, charging him with transporting aliens within the United States in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
Sterkaj then waived indictment and pleaded guilty to a one-court information charging him with transporting an alien within the United States. In a July 7, 2023 sentencing memorandum, the Government recommended that he be sentenced to six to twelve months’ imprisonment, as dictated by the Sentencing Guidelines. The Guidelines were amended on November 1, 2023, and, as a result, Sterkaj’s Final Presentence Report called for a markedly lower Guidelines sentencing range of zero to six months’ imprisonment.
At sentencing, however, the District Court deviated from the Guidelines and imposed a sentence of 24 months’ imprisonment, telling Sterkaj that he was “lucky [to be] only facing two years” and that the sentence “could have been up to ten years.” In doing so, the District Court observed that Sterkaj had failed to cooperate with the Government and claimed that he had “not shown remorse for [his] conduct” and was “not willing to cooperate to explain what happened.”
Sterkaj’s counsel objected to the sentence as outside the guidelines and the instant appeal followed.
Opinion
On appeal, Sterkaj argued that the District Court’s decision to impose a harsher sentence plainly violated the Second Circuit’s decision in Stratton, which held that “increasing the severity of a sentence for a defendant’s failure to cooperate” is an impermissible enhancement mandating vacatur, and that irrespective of a defendant’s motivations, increasing his sentence due to his silence is improper. He also argued that the increased sentence was procedurally unreasonable as it rested on an impermissible sentencing factor. Notably, the Government conceded (i) that the District Court increased Sterkaj’s sentence because of his purported refusal to cooperate and (ii) that in such circumstances, Stratton and its progeny would ordinarily require remand for resentencing.
But despite Stratton remaining good law, as it had not been reconsidered by the Circuit en banc or rejected by the Supreme Court, the Government argued that it should be set aside pursuant to a Second Circuit exception that allows a panel to deviate from prior rulings in limited circumstances. Under that exception, when an intervening Supreme Court decision casts doubt on otherwise binding circuit precedent, i.e., when the decision “broke the link” on which the circuit precedent was premised or undermined an assumption of that precedent, a panel is not bound to follow it. The panel generally agreed with the Government’s framing of that exception, but stressed that it is to be used “cautiously” and that “mere tension between a Second Circuit opinion and a subsequent Supreme Court opinion does not suffice to trigger [it].”
Applying these standards, the panel easily concluded that the three Supreme Court cases the Government relied on in attempting to invoke the exception were insufficient. As to the first case, Salinas v. Texas, the panel noted that its holding that the Fifth Amendment privilege against self-incrimination could not be relied upon unless an individual expressly invokes the privilege did not sufficiently undermine Stratton as Stratton’s prohibition on impermissible sentencing enhancements was “not limited to the Fifth Amendment Context.” The second case identified by the Government, Pepper v. United States, was similarly inadequate, as it concerned downward variances in resentencing, and not upward variances in sentencing. The panel further noted that other language in Pepper concerning a sentencing court’s ability to “consider the widest possible breadth of information about a defendant” also failed to move the needle, as such language did little more than restate an established legal principle settled “more than fifteen years before Stratton was decided.” Finally, the panel quickly disposed of the third case, Concepcion v. United States, which similarly concerned resentencing and detailed settled principles of law which predated Stratton, such that “the two are presumed to be consistent, and nothing in Concepcion clearly breaks a logical link upon which Stratton depended.” In so holding, the panel rejected the Government’s attempts to present Concepcion as a “novel grant of unfettered authority to sentencing judges,” explaining that Concepcion simply reaffirmed the “longstanding tradition” that a sentencing judge must “consider[] the whole person before him or her as an individual.” But that tradition did not confer “unbounded authority to impose sentences on improper procedural bases using that information.”
Tying it all together, the panel explained that while the District Court was permitted to consider evidence of Sterkaj’s cooperation or lack thereof, it could not infer a lack of remorse from that failure to cooperate (an “ambiguous silence” by the defendant) and use that inference to justify an upward variance from the Sentencing Guidelines. And because Stratton remained good law, as none of the three Supreme Court decisions identified by the Government justified invoking the exception, the District Court’s actions were per se procedurally unreasonable.
Accordingly, the panel vacated Sterkaj’s sentence and remanded the case to the District Court for resentencing. The panel also decided to depart from the usual tradition and to remand the case to a different district judge. The panel observed that in circumstances that might cause an observer to question a judge’s impartiality, the Circuit has the power to remand the case to a different judge, as was done in Stratton. Accordingly, while it was confident that the sentencing judge could appropriately resentence Sterkaj, it remanded the case to a different judge for resentencing to address those appearance-of-justice concerns.
Commentary
The panel’s decision in Sterkaj is noteworthy for three reasons. First, it confirms that the Circuit’s exception for departing from binding precedent is very narrowly construed, as although the three Supreme Court cases identified by the Government were arguably analogous to Stratton, their similarities were insufficient to survive the strict analysis applied by the panel. Litigants seeking to leverage the exception to circumvent binding precedent should take care to ensure that they can show more than “mere tension” between that precedent and a subsequent Supreme Court decision. A different rule would allow one panel to undo the work of a prior panel even where no Supreme Court decision required it, by pointing to a trend in the law or relying on an implicit premise in a Supreme Court decision. Here, the government’s argument was rejected by the panel because it seemed to rest on such implicit premises in an effort to avoid the clear import of Stratton, which has remained good law for decades.
Second, Stratton was correctly decided. Offering cooperating witnesses a chance at a reduced sentence in exchange for assisting with the government’s investigation is critical to law enforcement efforts. And over time, this exchange has provided defendants with ample incentive to cooperate with the government. But those who decline to cooperate despite these incentives should not be punished for making that choice.
Third, Sterkaj reminds us of the importance of necessary concessions. As the panel acknowledged, the Government was “right to concede” that the straightforward application of Stratton would mandate vacatur and remand for resentencing. By making that concession, the Government was able to maintain its credibility in this and other cases without compromising its ability to present other arguments in support of affirmance. As the Supreme Court held many years ago, while a prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Berger v. United States, 295 U.S. 78, 88 (1935). It is always good to see the government not press bad-faith arguments when a concession furthers the prosecutor’s mission of doing justice, regardless of what it means for the outcome of the case.
