In United States v. Dralle, the Second Circuit (Bianco and Robinson; Sullivan, dissenting) vacated the sentence of Chase Dralle after he pled guilty to illegal receipt of a firearm, in violation of 18 U.S.C. § 933(a)(2) and 933(b). The Court engaged in a lengthy discussion of the sentencing court’s consideration of Dralle’s uncharged conduct but ultimately chose not to determine whether the court committed plain error in considering this conduct. The Court determined, however, that the sentencing court should not have considered the violent conduct of the individual from whom Dralle bought the firearm, and so vacated Dralle’s sentence and remanded the case for resentencing. Judge Sullivan dissented, in part based on the plain error standard and the need to show deference to district courts. The case presents an interesting debate about the nature of procedural reasonableness and how to apply the standard of appellate review for sentencing.

Background

In July 2023, the Bureau of Alcohol, Tobacco, and Firearms began an investigation into Stefan Bagley after he and another individual were separately dropped off at a hospital in Bridgeport, Connecticut, each with a gunshot wound. Investigators concluded from surveillance footage that the passenger of a vehicle registered to Bagley shot the other individual. While Bagley refused to discuss how he became injured, the investigators uncovered evidence of Bagley’s purchase of approximately twenty firearms, as well as video evidence of him stealing ammunition.

On October 27, 2023, investigators arrested Bagley and seized his cell phone while he was attempting to purchase a firearm. Upon reviewing the contents of the cell phone, investigators uncovered messages that approximately two months before his arrest, Bagley had purchased a pistol from Dralle for $760.

In December 2023, a grand jury indicted Dralle and five others, including Bagley, on firearms offenses. Dralle was charged with receipt of a trafficked firearm, in violation of 18 U.S.C. § 933(a)(2) and 933(b). Dralle was arrested following his indictment, and released pending trial, subject to the condition that he not violate any federal, state, or local law pending release. On May 2024, Dralle pled guilty to the charge against him.

On August 14, 2024, the United States Probation Office submitted a petition for an arrest warrant for Dralle, alleging that he violated the conditions of his pretrial release by committing an assault at a gas station in Trumbull, Connecticut. On August 15, 2024, the district court signed the petition, and on August 16, 2024, Dralle appeared for a bond revocation hearing before a magistrate judge. The magistrate judge concluded that probable cause supported a finding that Dralle had committed state crimes in connection with the assault, and so Dralle was remanded into custody.

On August 20, 2024, Dralle appeared for sentencing. The district court sentenced Dralle to 30 months’ imprisonment, to be followed by three years of supervised release, a sentence well outside of the parties’ stipulated advisory Guidelines range of 12 to 18 months' imprisonment.

The Opinion

On appeal, Dralle argued that his sentence was procedurally unreasonable because the district court improperly considered: (1) his uncharged conduct, including the assault in Trumbull, without finding that these allegations had been proven by a preponderance of the evidence; and (2) Bagley’s criminal activities.

Although procedural reasonableness is generally reviewed for abuse of discretion, the Court applied a plain error standard to Dralle’s claims because he did not raise them before the district court. To establish that a district court’s decision constituted plain error, a defendant must establish: “(1) there is an error; (2) the error is clear or obvious, rather than subject to reasonable dispute; (3) the error affected [the defendant's] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings; and (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks and citation omitted).

First, the Court addressed Dralle’s argument that the district court erred in considering his uncharged conduct at sentencing. The Court acknowledged that “[a] sentencing court is not limited to considering only evidence of the convicted offense; it may take into account other relevant conduct.” United States v. Dralle, 175 F.4th 374, 382 (2d Cir. 2026) (quoting United States v. Juwa, 508 F.3d 694, 700 (2d Cir. 2007)). But the Court nevertheless explained that because the government did not offer any evidence during sentencing related to that conduct except the Probation Office’s petition to the district court for an arrest warrant, which was based on a police report from the Trumbull Police Department, the court should have made “a determination as to the reliability of the information contained in the police report, as well as whether such evidence met the preponderance of the evidence standard.” Id. at 384. The Court further noted that “[p]olice reports are not presumed to be categorically reliable.” Id. at 383 (citation omitted).

The Court also rejected the government’s argument that the uncharged conduct was reliable because of Dralle’s “apparent embrace of the petition['s] facts,” including defense counsel’s statement during sentencing that she had “advised the defendant very strongly [that] there's a possibility of an arrest” and her statement that she had “read the riot act to [Dralle]” during their discussion about the Trumbull incident.” Id. at 384-85. The Court held that the first statement “was hardly an indication that Dralle was stipulating or agreeing to the allegations made by the government in connection with his conduct during the incident,” and the second “could have been reasonably construed to reflect disappointment in the fact that Dralle had shown poor judgment in associating with certain individuals,” not that his “personal involvement in an unprovoked assault and attempted robbery, were undisputed.” Id. Nor did the district court accept defense counsel’s remarks as amounting to an admission by the defendant himself.

At the end of the Court’s extensive discussion regarding the district court’s consideration of Dralle’s uncharged conduct, the Court stated that it “need not resolve whether the district court's consideration of the uncharged conduct under these circumstances amounted to a clear or obvious error,” because Dralle would be resentenced for another independent reason: the district court committed plain error in considering Bagley’s violent activities. Id. at 387. Before resentencing, Dralle should be given the opportunity to review evidence supporting the allegations about the Trumbull incident, and to contest the allegations if he wishes.

On this issue, the Court acknowledged that “[i]t is well established that a district court may consider the relevant conduct of co-conspirators when sentencing a defendant.” Id. at 388 (quoting United States v. Johnson, 378 F.3d 230, 238 (2d Cir. 2004)). But it noted that in the instant case, “there [was] no evidence, nor even an allegation, that Dralle and Bagley were co-conspirators or that the shootings occurred within the scope of jointly undertaken criminal activity.” Id. The Court further rejected the government’s argument that the district court had properly considered Bagley’s conduct for a different purpose – “the important context in understanding the nature, circumstances, and seriousness of Dralle's offense.” Id. The Court noted that there was no “evidence at sentencing advanced by the government that Dralle, who had no criminal record, was purchasing the firearm to further any other type of criminal activity, or that Dralle was knowingly associating with violent individuals.” Id. at 389. The “mere use of the word ‘context’ by a sentencing judge does not insulate a district court’s consideration of a co-defendant’s violent conduct from review where the district court does not connect its consideration of such conduct to one or more Section 3553(a) factor.” Id.

Judge Sullivan dissented, seeing “no error – much less plain error – in the district court's consideration of the fact that Dralle purchased a firearm (and discussed purchasing more) from an individual who had procured twenty 9mm semi-automatic pistols in the span of a year and who was himself involved in two recent shootings.” Id. at 374. He viewed that as a “troubling criminal activity” that distinguished Dralle from other firearms dealers who sold guns to collectors or sportsmen.

With respect to the Trumbull incident, Judge Sullivan called the discussion “clearly dicta” and also concluded that, on the merits, the panel should have affirmed because the district court’s reliance on the facts contained in the Probation Office’s petition met the standard of a “minimal indicium of reliability beyond mere allegation.” Id. at 394 (citation and quotation omitted). He also concluded that Dralle could have contested the allegations because he knew about the charges five days before sentencing and also that his counsel’s comments amounted to a tacit admission of wrongdoing.

Judge Sullivan then reached the question of substantive reasonableness and concluded that the sentence here—30 months—was substantively reasonable, sending a message to the district court that it should feel comfortable imposing the same sentence on remand. He also noted that if above-Guidelines sentences received heightened scrutiny, so should below-the-range sentences, which are imposed in more than three of four cases in the District of Connecticut.

Discussion

The Court’s decision to write a lengthy opinion regarding the district court’s consideration of Dralle’s uncharged conduct, all the while not actually deciding whether such consideration was plain error on this record, should serve as a warning to sentencing courts not to consider uncharged conduct during sentencing unless there is a clear determination that such conduct more likely than not occurred. And the Court’s choice to highlight the frequent unreliability of police reports in this section appears to be a further admonishment to courts that they should be careful in giving deference to law enforcement without clearly reviewing the other evidence before them. The Court also gave a nice précis of what is required for a fair sentencing process: notice of the evidence and opportunity to challenge that evidence, as opposed to what transpired here. Even on a plain error standard, some greater modicum of procedure should be required before sentencing.

Further, the Court’s decision to find that the district court committed plain error in considering Bagley’s conduct sets an important precedent that even though courts are afforded a great deal of discretion at sentencing, not all sentencing decisions withstand the plain error standard. Rather, where a sentencing court considers evidence that has little clear relevance to the culpability of the defendant before them, the sentence imposed by that court must be vacated even under the least stringent standard of review.

Judge Sullivan expressed concern that the panel was holding district judges to a standard that required “the utterance of robotic incantations” at sentencing and involved “flyspeck[ing]” the proceeding below. He stated that he would afford “the district judge more deference in making sentencing decisions[.]” To be certain, Judge Sullivan is right that the district court’s sentencing decision is entitled to deference on appeal. See Gall v. United States, 552 U.S. 38 (2007) (holding that appellate courts must apply a “deferential abuse-of-discretion” standard when reviewing sentencing decisions). At the same time, as the majority explained, the problem here was more than a failure to recite the factors; the government pointed to no evidence in the record showing that Dralle knew of Bagley’s convictions. Even under a plain-error standard, actual evidence that connects a defendant to uncharged conduct is needed before such conduct is factored into that defendant’s sentence.

To be sure, in some cases, the procedural rights at issue in this appeal will make no difference. Often a defendant will find it difficult to challenge the government’s evidence at sentencing, where only a preponderance of the evidence is required and where hearsay may be admissible. All of the procedures in the world will not help those defendants. Whether it will matter in Dralle’s case is a matter for remand (with Judge Sullivan suggesting that the same sentence, imposed on the terms set by the majority, would be substantively reasonable). Still, whether it changes the outcome or not, the system’s fairness requires giving defendants this level of due process, including an opportunity to challenge the evidence, rather than to learn about the government’s evidence five days before sentencing without much time to mount a challenge to it.