Pepper Decided!!!!! Good News!

You have probably already heard about the Supreme Court's recent decision in Pepper v. United States, No. 09–6822 (Mar. 2, 2011). But it's a great case and deserves noting here.

The Court decided that when a sentence has been set aside on appeal and a case remanded a district court may consider evidence of a defendant’s post-sentencing rehabilitation and such evidence may support a downward variance.

Court discussed the role of 18 U.S.C. § 3742(g)(2), noting that § 3742(g)(2) restricts the discretion of a district court on remand by barring imposition of a sentence outside the guideline range except upon a ground of departure that was expressly used in the prior sentencing and upheld on appeal. Amicus contended that § 3742(g)(2) forecloses a resentencing court from considering evidence of a defendant’s postsentencing rehabilitation for purposes of imposing a non-guideline sentence, as such evidence did not exist at the time of the prior sentencing. But the Court found that "§ 3742(g)(2) is invalid after Booker."

Court pointed out that it abrogated 18 U.S.C. §§ 3553(b)(1) and 3742(e) in Booker, and that its reasoning there applied to § 3742(g)(2) as well. Court found that "we see no general congressional policy reflected in § 3742(g)(2) to preclude resentencing courts from considering postsentencing information, that provision has no bearing on our analysis of whether § 3553(a) permits consideration of evidence of postsentencing rehabilitation."

Other things to consider:

Section 3742(g)(2) is akin to § 3742(g)(1), which says that the old GLs will apply at a resentencing. Pepper provides ammo to argue that the old GLs are not the GLs that should apply if the new ones are more favorable. (If they are less favorable, we have an ex post facto issue, but that's an issue to discuss at another time; courts have gone different ways on that issue.) The dissent makes this point very clear: "I agree with the Court that the decision below cannot be affirmed on the basis of 18 U.S.C. § 3742(g) . . . . This provision was designed to function as part of the mandatory Guideline scheme . . . ." (Alito, J., dissenting). He just says (g)---no further subsection.

Now, for the Grant issue. (See the Jan. 18 entry on Grant.)

Does the Supreme Court implicitly sanction sentences below the mandatory minimum based on the defendant’s substantial assistance and post-sentencing rehabilitation? In Pepper, "safety valve" (18 U.S.C. § 3553(f) and guideline section 5C1.2) applied, which can be used to distinguish the case from a pure Grant situation. But Pepper still provides a sanction from the Supreme Court to use information beyond substantial assistance to sentence below a mandatory minimum.

Assisting the gov. is an aspect of obtaining "safety valve" relief from a mandatory minimum sentence. And the Court clarifies in Pepper that "‘It has been uniform and constant in the federal judicial tradition for the resentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.’"

Punishment should fit the defendant "and not merely the crime." Congress and the Sentencing Commission have "expressly preserved the traditional discretion of sentencing courts to ‘conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.’" While there are some constraints on sentencing courts’ discretion, once a mandatory minimum is released, a sentencing court should be able to consider a wide array of factors. . . .