United States v. Sterkaj, 138 F.4th 95

Klaudio Sterkaj was convicted in the Northern District of New York for transporting aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii).
The presentence reports and government recommendations both called for a 0–12 month sentence under the Sentencing Guidelines.
At sentencing, the district judge varied upward to impose a 24-month sentence based primarily on Sterkaj’s perceived lack of cooperation and insufficient explanation during the proceedings.
Sterkaj objected to the enhanced sentence, arguing the upward variance was improper.
On appeal, the key procedural issue was whether a district court can increase a defendant's sentence for refusing to cooperate with the government, in light of Second Circuit precedent.
The government conceded error if prior Second Circuit authority (Stratton) remained binding, but argued intervening Supreme Court cases superseded that rule.

Issue	Sterkaj's Argument	Government's Argument	Held
Can a court increase a sentence for refusal to cooperate?	Upward variance for non-cooperation is prohibited by Second Circuit precedent (Stratton).	Intervening Supreme Court cases undercut Stratton rule; judge had broad discretion.	No, upward variance for non-cooperation is impermissible under binding precedent.
Is Stratton still binding law in the Second Circuit?	Yes; no Supreme Court case has overruled it.	No; Supreme Court cases (Salinas, Pepper, Concepcion) undermine its rationale.	Yes, Stratton remains binding; cited SCOTUS cases do not undermine its rule.
Must resentencing be before a different judge?	Sought reassignment to preserve appearance of fairness.	Opposed; argued reassignment not affirmatively requested or necessary.	Yes; for the appearance of justice, remand to new judge required.
Was the sentence otherwise procedurally unreasonable?	Yes, based on improper factor and inadequate explanation.	Conceded error only if Stratton still applies.	Yes; sentence based on refusal to cooperate was procedural error.

United States v. Stratton, 820 F.2d 562 (2d Cir. 1987) (a district court may not increase a defendant’s sentence for refusing to cooperate with the government)
United States v. Rivera, 201 F.3d 99 (2d Cir. 1999) (reaffirming Stratton rule on improper sentencing enhancement for non-cooperation)
United States v. Whitten, 610 F.3d 168 (2d Cir. 2010) (applies Stratton in context of upward sentencing variances)
Sims v. Blot, 534 F.3d 117 (2d Cir. 2008) (abuse-of-discretion standard for reviewing sentencing decisions)
Monsanto v. United States, 348 F.3d 345 (2d Cir. 2003) (standards for panel adherence to circuit precedent)
Williams v. New York, 337 U.S. 241 (1949) (sentencing judges may consider broad relevant information but not on improper procedural bases)
Pepper v. United States, 562 U.S. 476 (2011) (resentencing courts can consider post-sentencing conduct, but does not override Stratton for initial sentencing)
Salinas v. Texas, 570 U.S. 178 (2013) (Fifth Amendment privilege must be expressly invoked, but does not alter Stratton's reasoning)
Concepcion v. United States, 597 U.S. 481 (2022) (confirms sentencing judges’ broad discretion, but does not authorize using silence/lack of cooperation as an aggravating factor)