Federal Judiciary

United States v. Sutherland, No. 07-0296-cr., 2009 WL 76514 (2d Cir. Jan. 13, 2009)

Sutherland was the lucky recipient of a Crosby remand.  But the district judge refused to consider his post-sentencing rehabilitation in resentencing him, finding that "there can be no error in the district court's failure to consider Sutherland's post-sentencing conduct and the BOP's post-sentencing decision regarding Sutherland's participation in the drug treatment program, since by definition those facts could not have been taken into account at the time of the original sentence."  Thus, they were not properly to be considered in the context of a Crosby remand.

But then it drops the following footnote: "We express no opinion as to whether, had the district court determined that it would have imposed a different sentence had it known the Guidelines were advisory, it would have been proper for the district court to consider the BOP's decision not to allow Sutherland to participate in the drug treatment program." 

I have no idea what this sentence means.  Can you explain it to me?