Supreme Court of the United States
Jason Pepper v. United States
March 2, 2011179 L. Ed. 2d 196
Summary
The Supreme Court held that when a defendant's sentence has been set aside on appeal, the district court at resentencing may consider evidence of postsentencing rehabilitation, which may in appropriate cases support a downward variance from the now-advisory Guidelines range, because 18 U.S.C. §§ 3661 and 3553(a) place no categorical bar on such evidence. The Court also expressly invalidated 18 U.S.C. § 3742(g)(2), which would have rendered the Guidelines effectively mandatory at resentencing, as unsupportable under Booker's Sixth Amendment remedial rationale. Separately, it affirmed that the law of the case doctrine did not require the newly assigned resentencing judge to replicate the prior 40-percent substantial-assistance departure, because the earlier remand ordered de novo resentencing that wiped the slate clean. The Eighth Circuit's judgment was vacated in part, affirmed in part, and the case remanded for resentencing. Justice Thomas dissented, arguing the Guidelines as written (including policy statement § 5K2.19) forbid such variances; Justice Breyer concurred in part and in the judgment, urging the Kimbrough reasonableness framework; Justice Alito concurred in part, concurred in the judgment in part, and dissented in part, warning against a return to pre-Guidelines discretionary sentencing.
Holding
- Whether a district court may consider evidence of postsentencing rehabilitation at resentencing to support a downward variance.. Yes. When a defendant's sentence has been set aside on appeal, the district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the now-advisory Guidelines range.
- Whether 18 U.S.C. § 3742(g)(2) remained valid after Booker.. No. Section 3742(g)(2) is constitutionally infirm under the Sixth Amendment rationale of Booker and is expressly invalidated, because like §§ 3553(b)(1) and 3742(e) it requires district courts effectively to treat the Guidelines as mandatory in an entire set of cases—at resentencing—where judicial factfinding will often increase the applicable range.
- Whether the law of the case doctrine required the resentencing judge to apply the same 40-percent substantial-assistance departure granted at the prior sentencing.. No. Because Pepper III set aside the entire sentence and remanded for de novo resentencing, the prior 40-percent departure was not binding law of the case; the newly assigned judge was free to grant a different departure.
Docket No. 09-6822