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Pepper v. U.S., USSC No. 09-6822, cert. grant 6/28/10


Decision below (CTA8)

Questions Presented:

There is a conflict among the United States Courts of Appeals regarding a defendant’s post-sentencing rehabilitation and whether it can support a downward sentencing variance under 18 U.S.C. § 3553(a).

Whether a federal district judge can consider a defendant’s post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v. United States?

Whether as a sentencing consideration under 18 U.S.C. § 3553(a), post-sentencing rehabilitation should be treated the same as post-offense rehabilitation.

When a district court judge is removed from resentencing a defendant after remand, and a new judge is assigned, is the new judge obligated under the doctrine of the “law of the case” to follow sentencing findings issued by the original judge that had been previously affirmed on appeal?

The case bounced up and down between District Court and COA on government appeal claiming the sentence was too light — until the US Attorney got the original sentencing judge booted from the case and a different judge stepped in and gave the government the stiff sentence it wanted after a final remand for resentencing. By then, several years had passed and Pepper argued his exemplary prison conduct warranted consideration. No such luck. Here’s how the Eighth dispatched his claim, with a good-luck but good-riddance shove out the door:

We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. “[E]vidence of [a defendant]’s post-sentence rehabilitation is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing.” Pepper III, 518 F.3d at 953 (internal quotation marks omitted) (quoting Pepper II, 486 F.3d at 413 (in turn quoting United States v. Jenners, 473 F.3d 894, 899 (8th Cir. 2007))). See also United States v. McMannus, 496 F.3d 846, 852 n.4 (8th Cir. 2007) (“While it is difficult not to be swayed by [defendant’s] post-sentencing rehabilitation successes, allowing this evidence to influence his sentence would be grossly unfair to the vast majority of defendants who receive no sentencing-court review of any positive post-sentencing rehabilitative efforts.”). “‘This panel is bound by Eighth Circuit precedent, and cannot overrule an earlier decision by another panel.’” United States v. Lovelace, 565 F.3d 1080,1085 (8th Cir. 2009) (quoting Passmore v. Astrue, 533 F.3d 658, 660 (8th Cir. 2008)).

Keep in mind that this relates to resentencing. Why wasn’t all Pepper’s conduct relevant? What if he’d demonstrably proven by his prison conduct to be a menace to society? Would the Eighth have had any trouble aggravating his sentence on that basis?Turns out the Solicitor General concedes that the 8th got it wrong, so maybe Pepper will eventually get his sentence reduced. Unless this all takes so long he’s released first anyway. If you filter out guidelines and government appeals of sentence and just focus on resentencing, this issue wouldn’t have gone this far in Wisconsin, which allows “a court (to) consider a defendant’s conduct after the imposition of the invalid sentence,” State v. Lorenzo Wood, 2007 WI App 190, ¶6.

{ 1 comment… add one }
  • David H Fisher July 29, 2010, 6:29 am

    I am puzzled by a recent Supreme Court ruling in this case.

    “The Justice Department had urged the Court to send the case back to the Eighth Circuit Court to consider the Department’s present position, but the Supreme Court went ahead and granted review June 28 of an appeal by the Iowa prisoner, Jason Pepper.

    In Thursday’s order, the Court chose Adam G. Ciongoli to enter the case as a friend-of-the-court and present a merits brief and an oral argument that a judge lacks that authority. Ciongoli, now engaged in corporate practice and teaching part-time at Columbia Law School, is a former law clerk to Justice Samuel A. Alito, Jr.”

    When a former law clerk of a very conservative justice is chosen to argue a position abandoned by the Department of Justice, it seems to me that some members of the Court are trying to pre-determine the outcome of this case – and pervert the course of justice.

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