On March 2, the U.S. Supreme Court ruled in Pepper v. United States, No. 09-6822, that a sentencing court may consider any post-sentence rehabilitation of a defendant who appears for resentencing after his original sentence has been set aside on appeal despite a federal sentencing guideline to the contrary.
The opinion was a robust affirmation of judicial discretion and the advisory nature of the federal sentencing guidelines. It rested, in part, on themes that were also advanced in FAMM’s amicus brief in Pepper, including the proposition that federal law requires that a defendant must be considered as he stands before the court. FAMM's brief noted, "A defendant must be sentenced based on who he is, not just who he was. Those principles are part of the fabric of federal sentencing law. A sentence imposed by a court that has blinded itself to a defendant’s rehabilitation is all but guaranteed to be greater than necessary to achieve its purposes—and is therefore unjust and unlawful."
In its ruling, the Supreme Court wrote, "Peppers’ exemplary postsentecing conduct may be taken as the most accurate indicator of “his present purposes and tendencies . . .” [and a]ccordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentencing sufficient but not greater than necessary” to serve the purposes of punishment."
The opinion opened with a compelling account of Mr. Pepper’s travels through life and the courts. Pepper pled guilty in 2003 to trafficking in methamphetamine. At 25, he was drug addicted, long-estranged from his family and seemingly on a downward trajectory. The government sought a modest departure to reflect his substantial assistance and the court sentenced him to 24 months, a significant departure from the 97-121 month sentence called for in the guidelines. The government appealed. In the meantime, the U.S. Supreme Court had decided Booker v. United States, which invalidated the mandatory nature of the federal sentencing guidelines. (FAMM participated with an amicus brief in Booker). The appeals court sent the case back to the sentencing court in light of Booker.
By the time of Mr. Pepper’s resentencing, he had been released from prison. He told the court that he was sober, having successfully completed the residential drug abuse program while incarcerated. He was earning As in community college, was working part time, had rebuilt his relationship with his father and was complying with all the demands of court imposed supervised release. The probation officer recommended that the original 24-month sentence, that he had already served, was reasonable in light of his assistance to the government and his rehabilitation after leaving prison.
The court agreed and rested its variance in part on the substantial assistance and in part on the post-sentence rehabilitation. The government appealed, in part citing the 8th Circuit’s ban on recognizing post-sentence rehabilitation. The Appeals Court agreed and sent the case back to district court, this time to another judge. By the time the case reached her, Pepper’s rehabilitation was even more pronounced and the U.S. Supreme Court had decided more cases strengthening judicial discretion, including Gall v. United States, a case FAMM participated in with an amicus brief.
Nonetheless, the second judge denied Pepper any credit for his rehabilitation because of the 8th Circuit’s rule. This was despite the fact that Pepper, still in college, was supervisor of a night crew at his workplace (and named “associate of the year”), was slated for promotion, had married, and was supporting his wife and her daughter. The judge resentenced him to 65 months and he was obliged to return to prison for a year until the U.S. Supreme Court agreed to hear his case.
The U.S. Supreme Court’s decision is a ringing endorsement of the commands, contained in federal law, that a judge must be free to consider every defendant as an individual, every case as unique, and must impose a sentence no longer than necessary to comply with the purposes of sentencing. The decision unpacked those provisions of federal law that support the consideration of post-sentence conduct. One directs that “the court may consider, without limitation, any information concerning the background, character and conduct of the defendant . . .” of a defendant. Reaffirming that the guidelines must be given “respectful consideration,” the Court said they may not limit the court’s discretion to consider all the things a court must take into account as set out at 18 U.S.C. § 3553(a).
Furthermore, evidence of Pepper’s post-sentence rehabilitation was necessary to the court when it considered the things it must take into account at sentencing including:
- the history and characteristics of the defendant “there is no question that ...evidence of Pepper’s conduct since his initial sentencing constitutes a critical part of the ‘history and characteristics’ of a defendant that Congress intended sentencing courts to consider.”
- the need for the sentence to
- afford deterrence –protect the public
- provide the defendant with educational and vocational training, and, above all
- to impose a sentence sufficient but not greater than necessary to comply with the purposes of sentencing.
The U.S. Supreme Court also repudiated the U.S. Sentencing Commission’s rule against considering post-sentence rehabilitation, as based on what it deemed “wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.” The Commission had based its prohibition, in part, on a contention that people who are resentenced have an unfair advantage over those who do not get resentenced and thus disparity is created. The Court said the difference in opportunity is due to the fact that some defendants are sentenced in error and not due to any “unwarranted disparity” which federal law does prohibit.
Mr. Pepper will face resentencing again, but this time backed up with this strong opinion. The sentencing court was clearly directed that it must take his post-sentence rehabilitation into account when he returns and it should also heed the message, that in the Court’s opinion, Mr. Pepper’s post sentencing conduct has been, in a word, “exemplary.”
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