Well, it’s been a while, but the court has finally issued a couple of summary orders of interest.
In United States v. De La Cruz, No. 09-4641-cr (2d Cir. October 21, 2010), the district court, in imposing sentence, remarked that a “Guideline sentence by definition really can’t create unwarranted sentencing disparity.” The circuit agreed with the defendant’s argument that this was incorrect; under Kimbrough “a Guidelines sentence can create an unwarranted disparity.” But here, since the sentencing decision did not depend in any way on an improper view that a Guideline sentence was by definition reasonable, there was no error.
In United States v. Faison, No. 09-1519-cr (2d Cir. September 14, 2010), the court remanded for recalculation of defendant’s criminal history. The district court used the Guidelines in effect at the time of the offense, but those in effect at the time of sentencing would likely have produced in a lower score.