Friday, December 3, 2010

Pepper On Deck

The U.S. Supreme Court will hear argument Monday in Pepper v. United States, out of the Eighth Circuit. The questions presented are: 1) whether a court of appeals can categorically prevent a sentencing court from considering a defendant's post-sentencing rehabilitation; and 2) whether, when a new judge is assigned to re-sentence the defendant after remand, the judge is obligated under law of the case doctrine to follow the original sentencing judge's findings that were left undisturbed on appeal.

Although Pepper  was a drug prosecution, the case will have important consequences for white collar practitioners. On a broader level, the Eighth Circuit's opinion should be seen as part of a massive resistance to the Booker-Gall-Kimbrough line of cases by some of our federal appellate courts. Title 18, United States Code, Section 3553(a)(1) commands the sentencing court to consider "the history and characteristics of the defendant" in determining the sentence to be imposed and Section 3661 directs that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence."

As the U.S. Supreme Court established in Booker, and reiterated in Gall and Kimbrough, a sentencing Court has broad discretion to consider nearly every aspect of a particular case (and a particular defendant) in fashioning an appropriate sentence. “It has been uniform and constant in the federal judicial tradition for the sentencing 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.”  Gall, 552 U.S. at 52 (citing Koon v. United States, 518 U.S. 81, 113 (1996)).

Apparently none of this impressed the Eighth Circuit. When the district court originally sentenced Jason Pepper to 24 months, based on a 75% downward departure for substantial assistance, the Eighth Circuit reversed in Pepper I. On remand the district court gave Pepper a 40% downward departure for substantial assistance, followed by a 59% downward variance, resulting once more in a 24 month sentence. One of the reasons the sentencing court cited for the variance was Pepper's post-sentencing rehabilitation. The Eighth Circuit reversed again, in Pepper II, upholding the 40% departure, but overturning the variance, based, among other things, on its flat rule prohibiting consideration of post-sentencing rehabilitation. The Supreme Court vacated the judgment and remanded the case to the Eighth Circuit for reconsideration in light of Gall. The Eighth Circuit reconsidered but reached the same result in Pepper III. Pepper was then resentenced by a different sentencing court that did not consider itself bound by the 40% downward departure for substantial assistance and also rejected any downward variance. The new sentence was 77 months, later reduced to 65 months after the Government filed a Rule 35(b) Motion. That sentence was affirmed in Pepper IV. Believe it or not, this is a truncated history.

The portion of the Eighth Circuit's ruling prohibiting consideration of post-sentencing rehabilitation is so bad that not even DOJ will defend it. The Eighth Circuit is certainly not alone in trying to gut Booker-Gall-Kimbrough. Many other circuits are piling on, usually under the guise of finding procedural errors by the district courts. More and more of these procedural errors look suspiciously substantive in nature. We are at a critical juncture.

Here are some of the briefs: Pepper Brief for Petitioner Pepper Brief for the United States Pepper Petitioner's Reply Brief Pepper NACDL Amicus Brief Pepper U.S. Reply Brief Pepper Amicus Brief in Support of Judgment Below


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History is interesting. In the early days of the Guidelines,twenty-some years ago, many judges were trying to gut the Guidelines because of their rigidity and constraints on judges, often (pre-Mistretta) finding them unconstitutional. Now, some judges are trying to gut Gall/Booker/Kimbrough, which relaxed the constraints, to restore the rigidity.

Posted by: Lawrence Goldman | Dec 8, 2010 11:07:29 AM

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