Pepper v. United States
562 U.S. 476, 2011 U.S. LEXIS 1902, 179 L. Ed. 2d 196 (2011)
Rule of Law:
A federal district court, when resentencing a defendant whose initial sentence was set aside on appeal, may consider evidence of the defendant's postsentencing rehabilitation to support a downward variance from the now-advisory Federal Sentencing Guidelines range, and 18 U.S.C. § 3742(g)(2) is invalid after United States v. Booker.
Facts:
- In October 2003, Jason Pepper was arrested and charged with conspiracy to distribute 500 grams or more of methamphetamine.
- Pepper pleaded guilty to the charge.
- At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addict who was unemployed and estranged from his family.
- While in prison after his initial sentencing, Pepper successfully completed a 500-hour drug treatment program and became drug-free.
- Since his release from prison in June 2005, Pepper enrolled at a local community college as a full-time student and earned high grades.
- Since his release, Pepper obtained and maintained part-time employment, eventually becoming a supervisor at a warehouse retailer and being recognized as "associate of the year."
- By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, reestablished a relationship with his father, married, and was supporting his wife’s daughter.
Procedural Posture:
- Pepper appeared for initial sentencing before Chief Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa.
- The District Court granted a 75% downward departure from the Guidelines range based on substantial assistance and sentenced Pepper to 24 months in prison.
- The Government appealed Pepper's initial sentence to the U.S. Court of Appeals for the Eighth Circuit, which reversed and remanded for resentencing (United States v. Pepper, 412 F.3d 995 (Pepper I)).
- At the first resentencing, the District Court (Judge Bennett) granted a 40% downward departure for substantial assistance and a further 59% downward variance for postsentencing rehabilitation, resulting in a 24-month sentence.
- The Government again appealed, and the Eighth Circuit reversed and remanded, holding that postsentencing rehabilitation was an impermissible factor for a downward variance (United States v. Pepper, 486 F.3d 408 (Pepper II)). The case was reassigned to Chief Judge Linda R. Reade.
- Pepper petitioned the Supreme Court, which granted certiorari, vacated the judgment in Pepper II, and remanded to the Eighth Circuit for reconsideration in light of Gall v. United States, 552 U.S. 38 (2007).
- On remand, the Eighth Circuit reaffirmed its prior conclusion that postsentencing rehabilitation was impermissible and again reversed and remanded for resentencing (United States v. Pepper, 518 F.3d 949 (Pepper III)).
- At the second resentencing, the District Court (Chief Judge Reade) granted a 20% downward departure for substantial assistance, rejected a downward variance for postsentencing rehabilitation, and imposed a 65-month term of imprisonment.
- The Eighth Circuit affirmed Pepper’s 65-month sentence, citing circuit precedent against considering postsentencing rehabilitation and upholding the new judge's discretion regarding the substantial assistance departure (United States v. Pepper, 570 F.3d 958 (Pepper IV)).
- Pepper petitioned the Supreme Court for a writ of certiorari, which was granted.
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Issue:
1. Does a district court, after a defendant’s sentence has been set aside on appeal, have the authority to consider evidence of the defendant’s postsentencing rehabilitation to support a downward variance from the advisory Federal Sentencing Guidelines range? 2. Does the law of the case doctrine require a resentencing court to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at a defendant's prior sentencing?
Opinions:
Majority - Justice Sotomayor
Yes, a district court may consider evidence of a defendant’s postsentencing rehabilitation when resentencing, and no, the law of the case doctrine did not require the resentencing court to apply the same percentage departure for substantial assistance. The Court affirmed the longstanding principle that sentencing judges have wide discretion to consider 'the fullest information possible concerning the defendant’s life and characteristics,' as codified in 18 U.S.C. § 3661 ('No limitation shall be placed on the information'). Postsentencing rehabilitation is highly relevant to several § 3553(a) factors, including 'the history and characteristics of the defendant' and the need for the sentence to deter, protect the public, and provide rehabilitation, offering the most up-to-date picture of the defendant's character and future risk. The Court expressly invalidated 18 U.S.C. § 3742(g)(2), which would have restricted a resentencing court's ability to impose a non-Guidelines sentence to only grounds relied upon at the prior sentencing and upheld on appeal. This provision, the Court reasoned, effectively rendered the Guidelines mandatory in certain cases, thus conflicting with the Sixth Amendment remedial holding in United States v. Booker, 543 U.S. 220 (2005), which made the Guidelines advisory. The Court rejected the argument that USSG § 5K2.19's policy statement against postsentencing rehabilitation was binding, finding its rationales (inconsistency with good time credit, unwarranted disparities) unconvincing and noting that post-Booker, district courts may disagree with the Sentencing Commission's views. The Court also found that the disparities arising from appellate review are not 'unwarranted' under § 3553(a)(6). On the second question, the Court held that when an appellate court vacates an entire sentence and remands for de novo resentencing, the original sentencing judge’s specific departure decisions do not become law of the case because a criminal sentence is a 'package of sanctions' and the resentencing judge needs to reconfigure the entire plan.
Dissenting - Justice Thomas
No, district courts should not be permitted to impose a sentence below the Guidelines range based on postsentencing rehabilitation, and thus Pepper’s sentence should be affirmed. Justice Thomas argued that the Court's remedy in Booker, which rendered the entire Guidelines scheme advisory, was 'far broader than necessary.' He contended that the Guidelines should be applied as written unless doing so would actually violate the Sixth Amendment. In Pepper's case, he admitted facts in his plea agreement that supported a much longer sentence than he received (65 months), meaning no Sixth Amendment problem existed. Therefore, under a mandatory Guidelines regime, USSG § 5K2.19, which 'expressly prohibits downward departures based on '[p]ost-sentencing rehabilitative efforts, even if exceptional,' should have been applied, and the 'variance' Pepper sought was a creation of the Booker remedy. While acknowledging the policy benefits of considering rehabilitation, Justice Thomas asserted that his role was to apply the law as written by Congress and the Sentencing Commission.
Concurring - Justice Breyer
Yes, the district court may consider postsentencing rehabilitation, and no, the law of the case doctrine did not bind the resentencing court regarding the substantial assistance departure. Justice Breyer concurred with the majority's conclusion that 18 U.S.C. § 3742(g)(2) is unconstitutional due to Booker, and that a sentencing court is not bound by USSG § 5K2.19's prohibition on considering postsentencing rehabilitation. He emphasized that Booker made the Guidelines advisory, but courts must still 'consult those Guidelines and take them into account,' and appellate courts review for 'reasonableness.' He argued that it is reasonable for a judge to disregard the Guidelines' absolute prohibition on postsentencing rehabilitation because the Commission offers 'no convincing justification' for this specific exception, especially since the Guidelines usually permit departures for conduct that 'significantly differs from the norm.' He found the Commission's rationales regarding good time credit and inequity unpersuasive. Justice Breyer stressed the importance of balancing individualized sentencing with uniformity, with courts and the Commission engaging in an iterative, cooperative effort to achieve a more equitable system.
Concurring-in-part-and-dissenting-in-part - Justice Alito
Yes, the decision precluding consideration of postsentencing rehabilitation must be reversed. Justice Alito concurred with Part III of the Court's opinion (regarding the law of the case doctrine) and agreed that 18 U.S.C. § 3742(g) cannot survive post-Booker. He also concurred in the judgment that the Eighth Circuit's decision regarding postsentencing rehabilitation must be reversed because Booker means the Guidelines' policy decisions are not binding. However, he dissented from the majority's broader reasoning, arguing that district judges should still be required to give 'significant weight' to the policy decisions in the Federal Sentencing Guidelines. He expressed concern that the Court's opinion, by praising the pre-1984 sentencing scheme that allowed wide judicial discretion, risks sliding back to an 'entirely discretionary federal sentencing' regime, which Congress reformed due to widespread dissatisfaction with 'shameful disparity.' He suggested that the Booker line of cases might need reexamination if this trend continues.
Analysis:
This case significantly reinforces the advisory nature of the Federal Sentencing Guidelines post-Booker, granting district courts greater discretion in considering a broader range of evidence at resentencing. By invalidating 18 U.S.C. § 3742(g)(2) and rejecting the binding force of USSG § 5K2.19, the Court ensures that defendants whose sentences are remanded for appeal can present the most current and relevant information about their rehabilitation, fostering individualized justice. However, Justice Alito's dissent highlights a tension, warning that this expanded discretion risks reintroducing the sentencing disparities that the Sentencing Reform Act originally sought to eliminate, potentially leading to future challenges regarding the balance between individualized sentencing and uniformity.
