Second Circuit Adopts Crosby-Type Remand Procedure for Cases with Unpreserved Kimbrough Errors

Adopting a Crosby-type remand procedure for cases with unpreserved Kimbrough errors (contesting the 100-1 crack cocaine sentencing ratio), the Second Circuit noted in United States v. Regalado, 05 CR 739, 2008 WL 577158 (2d Cir. March 4, 2008), that the Supreme Court in Gall and Kimbrough "confirm[ed] the broad deference that this Circuit has afforded the sentencing discretion of the district courts."

In addition to holding out the possibility of greater relief to defendants with crack cocaine cases on direct appeal than they would get under the crack retroactivity amendment, the decision includes some very quotable phrases regarding a sentencing court's discretion, including the fact that the sentencing judge "has discretion to determine that in the particular case, a within-Guidelines sentence is ‘greater than necessary’ to serve the objectives of sentencing;" Kimbrough "emphasized the broad discretion of a district court to tailor a sentence in light of other statutory concerns;" the appellate court's review of the "substantive reasonableness of the sentence for abuse of discretion" should "take into account the totality of the circumstances, including the extent of any variance from the Guidelines range . . . but must give due deference to the district court's decision that the §3553(a) factors, on a whole, justify the extent of the variance;" and "we may not reverse the district court simply because we would have imposed a different sentence."