Judge May Not Appreciated Full Scope of Sentencing Discretion

US v. Leyva-Ortiz, No. 07-2229, 5/21/09 Unpublished - Defendant gets a remand for resentencing in this reentry case because the district judge might not have appreciated that he had the discretion to vary downward based on disagreement with the policies underlying the reentry guidelines, given that the sentencing occurred prior to Gall and Kimbrough, the judge presumed the guidelines range was reasonable (although this was not plain error), and there was nothing in the record to indicate that he was aware of his ability to vary downward.