Re-Sentencing and Post Sentence Rehabilitation
Pepper v United States
Resentencing hearings: evidence of post-sentencing rehabilitation may be considered and this may support a downward variance from the Sentencing Guidelines.
Pepper v. United States 131 S. Ct. 1229 (2011).
Decided March 2, 2011 Supreme Court of the United States
Issue: Whether a district court is entitled to consider evidence of a defendant’s post-sentencing rehabilitation at a resentencing hearing and whether such evidence was a factor to consider in granting a downward variance from the Guideline range.
Holding: In situations where a defendant’s sentence has been set aside and referred for resentencing, a district court on resentencing may consider evidence of post-sentencing rehabilitation and such evidence may support a downward variance from the Sentencing Guidelines range. The “law of the case” doctrine does not require the resentencing court to apply the same percentage departure from the Guidelines range as had been applied at the defendant’s prior sentencing.
Facts: In 2003, petitioner Pepper pleaded guilty to conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. s846. At trial the Government moved for a 15% downward departure from the Sentencing Guidelines based on Pepper’s substantial assistance. Pepper actually received a 24 month sentence plus five years supervised release – i.e. a 75% departure from the lower end of the range. The Government appealed. At re-sentencing in 2006 (while Pepper was serving his term of supervised release), Pepper recounted having undergone successful drug rehabilitation to the extent that he was now clean. He had also enrolled at community college and was working part time. The District Court granted a 40% downward departure from the bottom of the Guideline range and granted a further 59% variance based on his rehabilitation since initial sentencing. His sentence was therefore reduced to 24 months with the Judge commenting to the effect that to send the defendant back to prison would serve no practical purpose.
A further appeal from the Government followed. The Eighth Circuit resentenced Pepper to a 65-month prison term – stating that it was inappropriate to consider post-sentencing rehabilitation in granting a downward variance from the advisory guidelines. The US Supreme Court reversed this.
Legal Analysis: The court was keen to underline the importance of judicial discretion in sentencing. Giving the lead opinion, Justice Sotomayor noted that the Supreme Court had adopted a generally consistent approach in recognizing that trial judges ought to be afforded wide discretion – including “the fullest information possible concerning the defendant’s life and characteristics”. The earlier US Supreme Court case of United States v. Booker had already determined that the Sentencing Guidelines are advisory (although the test of reasonableness will always be applied to any decision – and particular scrutiny will be applied where there is a marked departure from the (now advisory) Guidelines).
The Court was not of the opinion that Congress intended to preclude consideration of post-conviction rehabilitation when a district court conducts a resentencing hearing after an appeal. In particular, the Sentencing Reform Act in which the Sentencing Guidelines were introduced, makes no distinction between sentencing and resentencing in so far as the factors a court ought to take into consideration are concerned. What’s more, given that the earlier decision of Booker had ruled that the Sentencing Guidelines were advisory, if the Supreme Court was then to tie the hands of district courts and preclude them from considering post-sentencing rehabilitation, this would in practical terms have the effect of confining courts to those Guidelines in a way which is likely to be contrary not just to Booker but also to a defendant’s Sixth Amendment rights.