United States v. Regalado, No. 05-5379-cr (2d Cir. March 4, 2008) (Jacobs, Pooler, Sack, CJJ) (per curiam)
At last, the circuit has told us what to do in light of Kimbrough. And the answer is, in essence, a Crosby remand.
Regalado received a 262-month crack sentence, the bottom of the Guideline range (he was not a career offender). The sentencing judge said nothing about the 100-to-1 crack/cocaine disparity and the defendant never raised it. Due to this silence, the appellate court concluded that it could not “tell whether the district court would have exercised its now clear discretion to mitigate the sentencing range produced by the 100-to-1 ratio.” To solve the problem, the court decided to import the “Crosby mechanism” to crack cases.
Specifically, where a “defendant has not preserved the argument that the sentencing range for the crack cocaine offense fails to serve the [statutory] …