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] sentencing objectives . . . , we will remand to give the district court an opportunity to indicate whether it would have imposed a non-Guidelines sentence knowing that it had the discretion” to do so. “If so, the court should vacate the original sentence and resentence the defendant. If not, the court should state on the record that it is declining to [and] provide an appropriate explanation.” If the defendant again appeals, that sentence will be reviewed for reasonableness.
This is a wonderful opinion, filled with great language about a sentencing court’s discretion. It also has some really helpful language about plain error in sentencing cases, that, hopefully, the court will remember in other contexts.
The only remaining puzzle is what to call this kind of remand: A “Crosby/Kimbrough” remand? How about a “Cros/Kim“? This blogger, always a fan of alliteration, votes for the “Regalado Remand.”