United States v. Sterkaj

23-8088-cr
United States v. Sterkaj
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2024
No. 23-8088-cr
UNITED S TATES OF AMERICA,
Appellee,
v.
KLAUDIO S TERKAJ,
Defendant-Appellant.
On Appeal from the United States District Court
for the Northern District of New York
ARGUED: J ANUARY 15, 2025
D ECIDED: MAY 23, 2025
Before: C ABRANES, RAGGI , and N ATHAN, Circuit Judges.

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Defendant-Appellant Klaudio Sterkaj (“Sterkaj”) appeals from
the sentence component of a judgment of conviction entered in the
United States District Court for the Northern District of New York
(Frederick J. Scullin, Judge). Sterkaj contends that the District Court
committed procedural error when it imposed an upward sentencing
variance due to Sterkaj’s refusal to cooperate with the Government.
The parties agree that the District Court increased Sterkaj’s
sentence for that very reason. Under United States v. Stratton, 820 F.2d
562 (2d Cir. 1987), and its progeny, district courts may not use a
defendant’s refusal to cooperate as a factor justifying an increase in the
sentence imposed. As Stratton constitutes binding precedent and has
not been rejected by the Supreme Court or reconsidered by our Court
sitting en banc, we are presumptively bound to follow its holdings.
Here, that requires finding that the District Court acted impermissibly
when it increased Sterkaj’s sentence because of his refusal to cooperate.
The Government argues that we are not bound by Stratton
because of an exception to our general rule of fidelity to our precedent.
The exception sets forth that we are not bound by a prior holding if an
intervening Supreme Court decision casts doubt upon that holding.
The Government identifies three Supreme Court decisions that it
claims cast doubt upon Stratton. We disagree, and hold that Stratton
remains binding precedent in our Circuit.
Accordingly, we VACATE the sentence component of
defendant’s judgment of conviction and REMAND the case to the

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District Court for resentencing with the direction that defendant be
resentenced by a different judge.
S ARAH KUNSTLER , Law Offices of Sarah
Kunstler, Brooklyn, NY, for Defendant-
Appellant.
RAJIT S. D OSANJH, Assistant United States
Attorney, for John A. Sarcone III, United
States Attorney for the Northern District of
New York, Syracuse, NY, for Appellee.
J OSÉ A. C ABRANES, Circuit Judge:
Defendant-Appellant Klaudio Sterkaj (“Sterkaj”) appeals from
the sentence component of a December 15, 2023 judgment of
conviction entered in the United States District Court for the Northern
District of New York (Frederick J. Scullin, Judge). Sterkaj contends that
the District Court committed procedural error when it imposed an
upward sentencing variance due to Sterkaj’s refusal to cooperate with
the Government.
The principal question presented here is whether our holding in
United States v. Stratton remains good law.1 If it does, the Government
1 United States v. Stratton, 820 F.2d 562 (2d Cir. 1987).

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agrees that the proper resolution of this case is remand to the District
Court for resentencing. In Stratton, we held that a district court may
not increase a defendant’s sentence because of that defendant’s refusal
to cooperate.2 We have dutifully restated and applied the rule from
Stratton ever since.3
In the case before us, the sentencing judge lengthened the
defendant’s prison term because, among other things, he was
dissatisfied with the defendant’s proffer and his lack of cooperation in
anticipation of sentencing.4 The sentencing judge made it clear that, as
a result of his assessment of the defendant’s refusal to cooperate, he
was imposing a sentence substantially higher than that recommended
by the Government in its Sentencing Memorandum and by the United
States Probation Office in its Pre-Sentence Report (“PSR”).
This clear violation of the rule from Stratton is not disputed by
the Government, which candidly informs us that, if our Stratton
2 Id. at 564-65.
3 See, e.g., United States v. Rivera, 201 F.3d 99, 101-102 (2d Cir. 1999); United
States v. Whitten, 610 F.3d 168, 195 (2d Cir. 2010); United States v. McKenzie, No. 23-
6144, 2024 WL 3594326, at *1-3 (2d Cir. July 31, 2024).
4 A “proffer” session is one in which an individual—often a defendant, and
often accompanied by an attorney—meets with representatives of the Government
to share information with the Government and answer the Government’s
questions. The individual often does so in the hope of some benefit, such as
dropped charges or the Government’s recommendation of a lower sentence. See
generally Michael J. Engle and Adam J. Petitt, “Queen for a Day”—Assessing the Risks
and Rewards of a Proffer Agreement, Westlaw Journal White-Collar Crime, April 2017,
at 1; Michael H. Graham, Handbook of Federal Evidence § 410:1 n.2 (9th ed. 2024).

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decision retains its vitality, we would be required to remand the case
to the District Court for resentencing.5
In ordinary circumstances, a panel of our Court is not free to
ignore our precedents unless those precedents have been rejected by a
subsequent Supreme Court decision or subjected to en banc
reconsideration by our Court. However, in the limited circumstances
where an intervening Supreme Court decision “casts doubt” on a prior
ruling, breaking “the link on which we premised our prior decision, or
undermin[ing] an assumption of that decision,” we are not bound by
our precedent.6 Accordingly, it is the Government’s position that we
may affirm the sentence imposed by the District Court in this case—
despite the fact that it lies in clear conflict with our precedents—
because the Supreme Court’s rulings in Salinas v. Texas (2013), Pepper
v. United States (2011), and Concepcion v. United States (2022), all of
which were decided after Stratton, have cast doubt on the Stratton
rule.7
We disagree. None of the intervening cases advanced by the
Government disrupt the logic or upset the assumptions of our Stratton
5 See Appellee’s Br. at 15 (“Assuming, however, that the Court continues to
apply its precedent, the government concedes that the district court erred by
varying upwards from the guidelines range on the basis of [Sterkaj’s] refusal to
cooperate, necessitating a remand for resentencing.”).
6 See Dale v. Barr, 967 F.3d 133, 142 (2d Cir. 2020).
7 Salinas v. Texas, 570 U.S. 178 (2013); Pepper v. United States, 562 U.S. 476
(2011); Concepcion v. United States, 597 U.S. 481 (2022).

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decision enough to warrant deviating from its rule. Thus, we hold that
Stratton remains binding precedent in our Circuit.
We agree with the Government that strictly following Stratton
would require us to vacate the sentence component of Sterkaj’s
judgment of conviction and to remand the case to the District Court
for resentencing. Additionally, while we entertain no lack of
confidence in the experienced district judge who presided over this
case, we think that the appearance of justice requires that, on remand,
the case be assigned for resentencing by a different judge.
Accordingly, we VACATE the sentence component of the
judgment of conviction and REMAND the case to the District Court
for resentencing with the direction that Sterkaj be resentenced by a
different judge.
I. BACKGROUND
On July 11, 2022, a criminal complaint was filed against Sterkaj.8
The factual predicate for the criminal complaint involved a vehicle and
traffic stop performed by the New York State Police. Sterkaj had been
driving a car with two Albanian citizens who both admitted they had
entered the United States illegally from Canada. Sterkaj was charged
8 A 11-13.

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with transporting aliens within the United States in violation of 8
U.S.C. § 1324(a)(1)(A)(ii).9
On March 30, 2023, Sterkaj waived indictment and pleaded
guilty, pursuant to a plea agreement, to a one-count information
charging him with transporting an alien within the United States.10
In its Sentencing Memorandum of July 7, 2023, the Government
recommended that the District Court sentence Sterkaj to a within-
Guidelines sentence of 6 to 12 months’ imprisonment.11 Following the
enactment of new amendments to the Guidelines, which took effect
November 1, 2023, the United States Probation Officer calculated an
even lower Guidelines sentencing range of 0 to 6 months’
imprisonment in the Final Presentence Report (“PSR”) dated
November 15, 2023.12
Sentencing took place on December 15, 2023. The District Court
adopted the PSR’s findings, including the proposed Guidelines range
of 0 to 6 months imprisonment. Before imposing a sentence, the
District Court addressed the parties, stating “[m]y request is you
9 8 U.S.C. § 1324(a)(1)(A)(ii) provides in relevant part that any person who
“knowing or in reckless disregard of the fact that an alien has come to, entered, or
remains in the United States in violation of law, transports, or moves or attempts
to transport or move such alien within the United States by means of transportation
or otherwise” shall be punished as provided in subparagraph (B) of the statute.
10 A 18-35.
11 A 248.
12 PSR ¶ 44.

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spend some time talking to the defendant and the defendant spends
some time talking to the government about what happened here.”13
The District Court went on to say that, in light of Sterkaj’s failure to
cooperate with the Government in the way the District Court desired,
“the Court has to consider that you have not shown remorse for your
conduct and certainly are not willing to cooperate to explain what
happened.”14 On that ground, the District Court announced that it
would vary upward from the Guidelines range to impose a sentence
of 24 months’ imprisonment, telling Sterkaj “you’re lucky you’re only
facing two years” and that “[i]t could have been up to ten years.”15
Sterkaj’s then-counsel “lodge[d] an objection to the sentence as outside
the guidelines” and additionally expressed his intention “to make sure
that I’m not inadvertently waiving something,” preserving the
argument for appellate purposes.16
Sterkaj timely filed the instant appeal on December 21, 2023.
II. DISCUSSION
A. Under Second Circuit Precedent—Which Has Not Been
Undermined by Intervening Supreme Court Decisions—the
District Court’s Sentence Was Procedurally Unreasonable.
13 A 260.
14 A 261.
15 A 263.
16 A 263-64.

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We review a sentence imposed by the district court under a
“deferential abuse-of-discretion standard.”17 A district court has
abused its discretion “if it based its ruling on an erroneous view of the
law or on a clearly erroneous assessment of the evidence, or rendered
a decision that cannot be located within the range of permissible
decisions.”18
We held in Stratton that “increasing the severity of a sentence
for a defendant’s failure to cooperate” is an “impermissibl[e]
enhance[ment],” warranting vacatur, and that “[i]t is improper to
increase a defendant’s sentence due to his silence regardless of his
motivations.”19
Sterkaj contends that the District Court’s decision to increase the
severity of his sentence due to his refusal to cooperate with the
Government is impossible to reconcile with our precedents and was
procedurally unreasonable because it rested on an impermissible
factor.20 It is uncontested that the District Court increased Sterkaj’s
17 United States v. Pope, 554 F.3d 240, 244 (2d Cir. 2009) (quoting Gall v. United
States, 552 U.S. 38, 41 (2007)).
18 Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008) (quotation marks and citations
omitted).
19 Stratton, 820 F.2d at 564-65.
20 See Defendant-Appellant’s Br. at 12, 19-22.
Sterkaj contends that the decision to increase the severity of his sentence
due to his refusal to cooperate also constitutes procedural error under U.S.S.G.
§ 5K1.2. Id. at 16-18 (arguing that since section 5K1.2 provides that “[a] defendant’s

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sentence because, in the District Court’s view, he had refused to
cooperate. Indeed, the Government acknowledges in its brief that “the
record establishes that the district court increased Sterkaj’s prison term
due to his refusal to cooperate with the government,” which, under
our Stratton line of precedent, means “that the district court erred” and
“necessitat[es] a remand for resentencing.”21
The Government is right to concede this point. The District
Court, at sentencing, justified its upward variance by explaining that
Sterkaj “certainly [was] not willing to cooperate to explain what
happened.”22 Accordingly, the District Court’s sentence violated the
clear holding of Stratton.
Typically, our analysis would end here. Stratton constitutes
binding precedent in our Circuit. Therefore, we must follow its
teachings “unless and until [it] is reconsidered by our court sitting in
banc (or its equivalent) or is rejected by a later Supreme Court
refusal to assist authorities in the investigation of other persons may not be
considered as an aggravating sentence factor,” it was improper for the District
Court to increase Sterkaj’s sentence based solely on his failure to cooperate).
Because we conclude that there was sufficient procedural error to warrant reversal
on other grounds, we do not reach this argument.
For a similar reason, we do not reach Sterkaj’s contention that the District
Court failed to adequately explain its chosen sentence. See id. at 22-24.
21 Appellee’s Br. at 14-15.
22 A 261.

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decision.”23 As neither of these eventualities has occurred, we are
bound to follow Stratton’s dictates.
The Government, however, seeks to invoke an exception to our
general rule. It argues that our Stratton line of cases “is not consistent
with the Supreme Court’s precedent” and that “intervening Supreme
Court decisions provide grounds for not continuing to apply” the
Stratton rule.24 We are not bound to follow a prior ruling in our Circuit
when “an intervening Supreme Court decision casts doubt on the prior
ruling—that is, where the Supreme Court’s conclusion in a particular
case . . . broke the link on which we premised our prior decision, or
undermined an assumption of that decision.”25 That said, this
exception is not to be construed liberally, and we only “resort to [it]
cautiously, because ‘[a] less-than-stringent application of the
standards for overruling prior decisions not only calls into question a
panel’s respect for its predecessors but also increases uncertainty in
the law by revisiting precedent without cause.’”26 Accordingly, mere
“tension” between a Second Circuit opinion and a subsequent
Supreme Court opinion does not suffice to trigger this exception.27
23 Monsanto v. United States, 348 F.3d 345, 351 (2d Cir. 2003).
24 Appellee’s Br. at 14-15.
25 United States v. Peguero, 34 F.4th 143, 158 (2d Cir. 2022) (quotation marks
and alteration omitted).
26 Dale, 967 F.3d at 143 (quoting Doscher v. Sea Port Group Securities, LLC, 832
F.3d 372, 378 (2d Cir. 2016)).
27 Monsanto, 348 F.3d at 350-51.

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With these concepts in mind, we must assess whether any of the
Supreme Court case law presented by the Government qualifies as an
intervening decision that rises to the level of casting doubt on our
ruling in Stratton in a manner that warrants application of the
exception.
The Government points to three cases to support its argument:
Salinas v. Texas, Pepper v. United States, and Concepcion v. United States.28
We address each case in turn.
The first case, Salinas v. Texas, clearly does not cast doubt on the
Stratton line of cases. Salinas holds that individuals cannot “rely on the
[Fifth Amendment] privilege against self-incrimination” unless they
expressly “invoke [that privilege].”29 The Government asserts that
Salinas therefore undermines Stratton’s reasoning that it is
“unimportant that [the defendant] did not raise his Fifth Amendment
claim in the district court.”30
But the Government is mistaken to treat Stratton as dependent
on the Fifth Amendment privilege against self-incrimination. Indeed,
28 Salinas v. Texas, 570 U.S. 178 (2013); Pepper v. United States, 562 U.S. 476
(2011); Concepcion v. United States, 597 U.S. 481 (2022).
The Government also contends that Stratton is inconsistent with an earlier
Supreme Court case: Roberts v. United States, 445 U.S. 552 (1980). Roberts was
decided before our ruling in Stratton. Therefore, it is not an “intervening” case and
cannot trigger the exception to our duty to follow our binding precedent.
29 Salinas, 570 U.S. at 191.
30 Stratton, 820 F.2d at 564; Appellee’s Br. at 32.

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in Stratton we noted that our “rule on improper sentence enhancement
for refusal to cooperate” was “not limited to the Fifth Amendment
context.”31 Thus, any evolution in doctrine regarding that privilege in
Salinas cannot be said to have broken the logical link underlying
Stratton.
Pepper v. United States is similarly inapposite. The Supreme
Court held in Pepper that “when a defendant’s sentence has been set
aside on appeal, a district court at resentencing may consider evidence
of the defendant’s postsentencing rehabilitation and that such
evidence may, in appropriate cases, support a downward variance
from the now-advisory Federal Sentencing Guidelines range.”32 But
the case before us concerns sentencing in the first instance, not
resentencing as in Pepper. What is more, it contemplates an upward
variance rather than a downward variance, and we have repeatedly
held that “[i]t is one thing to extend leniency to a defendant who is
willing to cooperate with the government; it is quite another thing to
administer additional punishment to a defendant who by his silence
has committed no additional offense.”33
Even if Pepper’s procedural posture and holding were
analogous—and again, they are not—nothing else in that decision
casts doubt on Stratton. The Government, arguing otherwise,
31 Stratton, 820 F.2d at 564.
32 Pepper, 562 U.S. at 481.
33 Stratton, 820 F.2d at 564 (quoting United States v. Bradford, 645 F.2d 115,
117 (2d Cir. 1981)).

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primarily points to language in Pepper suggesting that “sentencing
courts” should be permitted to “consider the widest possible breadth
of information about a defendant.”34 But this is not some novel
proposition espoused for the first time in Pepper. Rather, it derives
from what the Government acknowledges is an “established
principle”35 codified in 18 U.S.C. § 3661.36 As a mere restatement of law
that was settled more than fifteen years before Stratton was decided,
the language that the Government relies on in Pepper cannot qualify as
an intervening decision that casts doubt on Stratton.
The last case that the Government calls to our attention is
Concepcion v. United States. Concepcion is inapposite for reasons similar
to Pepper insofar as it concerns a matter of resentencing rather than
sentencing in the first instance.37
34 Pepper, 562 U.S. at 488.
35 Appellee’s Br. at 33.
36 18 U.S.C. § 3661 provides that “[n]o limitation shall be placed on the
information concerning the background, character, and conduct of a person
convicted of an offense which a court of the United States may receive and consider
for the purpose of imposing an appropriate sentence.” This language was in fact
first codified in 1970 in 18 U.S.C. § 3577; Congress later “recodified § 3577 without
change at § 3661.” See Pepper, 562 U.S. at 488-89.
37 Concepcion, 597 U.S. at 486 (“The question in this case is whether a district
court adjudicating a motion under the First Step Act may consider other
intervening changes of law (such as changes to the Sentencing Guidelines) or
changes of fact (such as behavior in prison) in adjudicating a First Step Act
motion.”).

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Even if we were to reach the substance of Concepcion, however,
it would not alter our conclusion. The Government places great weight
on the assertion by the Concepcion Court that “[t]he only limitations on
a court’s discretion to consider any relevant materials at an initial
sentencing or in modifying that sentence are those set forth by
Congress in a statute or by the Constitution.”38 But this, too, is no more
than a restatement of a settled principle of law and is at most
coextensive with the language of 18 U.S.C. § 3661. As with Pepper,
because 18 U.S.C. § 3661 predated our Stratton decision, the two are
presumed to be consistent, and nothing in Concepcion clearly breaks a
logical link upon which Stratton depended.
The Government’s reading of Concepcion isolates a single line
from that opinion and construes it as a novel grant of unfettered
authority to sentencing judges. But Concepcion simply reaffirms the
“longstanding tradition in American law, dating back to the dawn of
the Republic, that a judge at sentencing considers the whole person
before him or her ‘as an individual.’”39
To be sure, to facilitate this assessment, “a federal judge in
deciding to impose a sentence ‘may appropriately conduct an inquiry
The First Step Act, which “authorizes district courts to reduce the prison
sentences of defendants convicted of certain offenses involving crack cocaine,”
contemplates the resentencing of individuals who have already received an initial
sentence. Id.
38 Id. at 494 (citing Pepper, 562 U.S. at 489 n.8).
39 Id. at 486 (quoting Koon v. United States, 518 U.S. 81, 113 (1996)).

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broad in scope, largely unlimited either as to the kind of information
he may consider, or the source from which it may come.’”40 And the
Supreme Court has stated that the “wide discretion in the sources and
types of evidence”41 sentencing judges are permitted to consider is
“necessary [so] that a sentencing judge not be denied an opportunity
to obtain pertinent information by a requirement of rigid adherence to
restrictive rules of evidence properly applicable to [] trial.”42 But of
course, the simple fact that information may be accessed does not
imply an unbounded authority to impose sentences on improper
procedural bases using that information.43
40 Id. at 492 (quoting United States v. Tucker, 404 U.S. 443, 446 (1972)).
41 Id. (quoting Williams v. New York, 337 U.S. 241, 246 (1949)).
42 Williams, 337 U.S. at 247.
43 The Government is quite right to note that limitations on the sentencing
judge’s discretion to consider relevant information must be grounded in the
Constitution or in statute. But the question of which Constitutional or statutory
touchstone grounds Stratton within the holding of Concepcion is not before us. That
said, we note in passing that at least one appears to exist: the Fifth Amendment’s
due process guarantee. Procedural due process is plausibly derogated when a judge
fills in the space left by a defendant’s silence with adverse presumptions. As we
have previously stated, “[i]t is one thing to extend leniency to a defendant who is
willing to cooperate with the government; it is quite another thing to administer
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)
(quoting United States v. Ramos, 572 F.2d 360, 363 n.2 (2d Cir. 1978)). While “the
distinction is somewhat illusory,” we have determined that “it is the only rule that
recognizes the reality of the criminal justice system while protecting the integrity
of that system.” Mallette v. Scully, 752 F.2d 26, 30 (2d Cir. 1984); see also Roberts, 445
U.S. at 563 (Brennan, J., concurring) (“[T]he problem of drawing inferences from an

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Connecting the foregoing to the instant appeal, the District
Court in this case was unquestionably permitted to hear evidence of
Sterkaj’s cooperation or lack thereof. It was not permitted, however, to
infer a lack of remorse, warranting an upward variance, from the
ambiguous silence of Sterkaj’s unexplained lack of cooperation. This
conclusion follows inexorably from our holding in Stratton—a holding
that has not been clearly undermined by the Supreme Court’s decision
in Concepcion.
Thus, we decline the Government’s invitation to invoke our
exception to following binding precedent. As the exception is one that
we resort to only “cautiously,” and as none of the cases raised by the
Government cast any doubt on our ruling in Stratton, for us to decide
otherwise would both improperly “call[] into question [our] respect
for [our] predecessors” and “increase[] uncertainty in the law by
revisiting precedent without cause.”44 Therefore, we conclude that
Stratton remains good law, and hold that the District Court’s decision
to increase Sterkaj’s sentence on the basis of his refusal to cooperate
was procedurally unreasonable.45
ambiguous silence is troubling. As a matter of due process, an offender may not be
sentenced on the basis of mistaken facts or unfounded assumptions.”).
44 Dale, 967 F.3d at 143 (quoting Doscher, 832 F.3d at 378).
45 Sterkaj also contends that the sentence was substantively unreasonable.
Defendant-Appellant’s Br. at 24-26. Since we hold that the sentence contains
procedural error, we do not reach that issue.

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B. We Remand the Case to Another Judge in Order to Preserve the
Appearance of Justice.46
In Stratton, after we held that the defendant’s sentence was
impermissibly enhanced due to his silence, we vacated the sentence
and remanded for resentencing by a different judge.47 While we did
not articulate a reason for remanding to a different judge in that
decision, we have previously held that “when circumstances might
reasonably cause an objective observer to question the judge’s
impartiality, the Court has the power to remand the case to a different
judge.”48 In Stratton, the circumstances that sufficed to merit remand
to a different judge appeared to consist solely of the sentencing judge’s
decision to increase the defendant’s sentence because of his refusal to
cooperate with the Government.
If reassigning the case to a different judge was the appropriate
course of action in Stratton, then it is surely the correct outcome here,
too. As in Stratton, the judge indisputably imposed a longer sentence
because of a defendant’s failure to cooperate with the Government.
46 The Government contends that we should not reach the question of
reassignment because “Sterkaj makes no affirmative argument in favor of
reassignment” in his opening brief. Appellee’s Br. at 38. But Sterkaj does make just
such an argument in his reply brief. See Reply Br. at 15-16. In any event, we have
found that “there is no barrier to our reassigning [] cases nostra sponte.” Ligon v. City
of New York, 736 F.3d 118, 129 (2d Cir. 2013), vacated in part, 743 F.3d 362 (2d Cir.
2014). Thus, the Government’s threshold argument to prevent this inquiry fails.
47 Stratton, 820 F.2d at 565.
48 United States v. Trimm, 999 F.3d 119, 129 (2d Cir. 2021) (quotation marks
omitted and alteration adopted).

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Indeed, even after sentencing Sterkaj to a prison term of 24 months,
the judge made comments that could be interpreted as suggesting that
he continued to seek Sterkaj’s cooperation with the Government.49
Our decision to remand for resentencing by a different judge
does not reflect any lack of confidence in the ability of the sentencing
judge to conduct an appropriate resentencing. We have no doubt on
that count and are certain that the District Court’s resentencing would
have comported with our order. But we cannot ignore the appearance-
of-justice concerns before us here.
III. CONCLUSION
To summarize, we hold as follows:
(1) The Stratton line of cases remains binding law in the Second
Circuit;
(2) The District Court’s decision to increase Sterkaj’s sentence
due to his refusal to cooperate with the Government was
procedurally unreasonable; and
(3) In the circumstances presented here, concerns for the
appearance of justice require us to remand this matter for
resentencing by a different judge.
49 The sentencing judge told Sterkaj “it’s up to you what you’re going to do
now” and that he could “help [him]self or . . . hurt [him]self.” A 263:11-12.

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For the foregoing reasons, we VACATE the sentence
component of the judgment of conviction and REMAND the case to
the District Court for resentencing with the direction that defendant
be resentenced by a different judge.

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