Pepper v. United States


1. When a defendant's sentence has been set aside, may a federal district court judge consider a defendant’s post-sentencing rehabilitation in re-sentencing?

2. If a new judge is assigned to resentence the defendant, must the new judge follow the original judge’s sentencing findings under the law of the case doctrine?

Oral argument: 
December 6, 2010

After his arrest in 2003, Jason Pepper pled guilty to conspiracy to distribute methamphetamine and cooperated with the authorities by testifying against his co-defendants. Due to his lack of prior convictions, cooperation with the authorities, and his desire to seek drug treatment, the district court judge gave Pepper a 24-months prison sentence, which was substantially below the 97 to 121 months recommended by the Federal Sentencing Guidelines. The Eighth Circuit reversed for resentencing, determining that the district court abused its discretion by decreasing Pepper's sentence based on the court's desire to give Pepper the shortest possible sentence. During the appeal, Pepper successfully completed his sentence, married, stayed drug-free, obtained a job, and achieved straight A's in college. Upon remand to the district court, Pepper was again sentenced to 24 months in prison, this time due to his post-sentence rehabilitation. The Eighth Circuit again reversed for resentencing, finding that the judge could not consider post-sentencing rehabilitation in choosing a sentence below the Guidelines. The district court, under a new judge, increased Pepper's sentence significantly and sent him back to prison after he had been out for several years. Pepper argued that this was improper because post-sentencing rehabilitation is an appropriate factor to consider during resentencing, and the new judge violated the "law of the case" doctrine by not following part of the previous judge's determination. In this case, the Supreme Court will determine whether post-sentence rehabilitation is a proper factor to consider in resentencing, and whether the law of the case doctrine applies to Pepper's appeal.

Questions as Framed for the Court by the Parties 

There is a conflict among the United States Courts of Appeals regarding a defendant's post-sentencing rehabilitation and whether it can support a downward sentencing variance under 18 U.S.C. § 3553(a). Whether a federal district judge can consider a defendant's post-sentencing rehabilitation as a permissible factor supporting a sentencing variance under 18 U.S.C. § 3553(a) after Gall v. United States? Whether as a sentencing consideration under 18 U.S.C. § 3553(a), post-sentencing rehabilitation should be treated the same as post-offense rehabilitation. When a district court judge is removed from resentencing a defendant after remand, and a new judge is assigned, is the new judge obligated under the doctrine of the "law of the case" to follow sentencing findings issued by the original judge that had been previously affirmed on appeal?


In 2003, Petitioner Jason Pepper was charged with and pled guilty to a conspiracy to distribute methamphetamine. See U.S. v. Pepper, 412 F.3d 995, 996 (8th Cir. 2005) (“Pepper I”). At the time, Pepper was 24 years old and had no prior convictions. See Brief for Petitioner, Jason Pepper at 3. Although the offense carried a ten-year mandatory minimum sentence, Pepper qualified for the "safety-valve" provision in 18 U.S.C. § 3553(f), which made the statutory minimum sentence optional because Pepper had no prior convictions. See Pepper I, 412 F.3d at 996. Under the Federal Sentencing Guidelines, Pepper's base offense level was 30, resulting in a recommended sentence of 97 to 121 months' imprisonment. See Id.The government filed a motion asking for the court to decrease Pepper’s prison sentence by 15% because of his cooperation in providing statements and grand jury testimony against two other defendants. See Id. at 99697; Federal Sentencing Guideline §5k1.1. The court granted the motion, but rather than decreasing the minimum recommended sentence by 15%, to 82 months, the court sentenced Pepper to 24 months’ imprisonment and five years' supervised release, which was a 75% sentence decrease. See Pepper I, 412 F.3d at 99697. The judge chose a 24-month sentence because it was the minimum sentence which would still enable Pepper to qualify for an intensive drug treatment program at the Yankton, South Dakota federal prison camp. See Id. at 997.

The government appealed the sentence and the Eighth Circuit reversed and remanded for resentencing because it believed that the district court erred in considering factors besides the defendant's cooperation. See Pepper I, 412 F.3d at 999. According to the Eighth Circuit, the district court erroneously considered its own desire to sentence Pepper to the lowest possible term which would still allow for participation in the drug treatment program in Yankton. See Id. By the time of resentencing, Pepper had completed his drug treatment and 24-month prison sentence and had been on supervised release for ten months. See Brief for Petitioner at 7. During those ten months, Pepper obtained a part-time job, attended school full-time achieving straight A's, and complied with the terms of his supervised release. See id. at 79.

On remand, the district court sentenced Pepper to 24 months' imprisonment. See U.S. v. Pepper, 486 F.3d 408, 410 (8th Cir. 2007) ("Pepper II"). The court first granted a 40% sentence decrease for assisting investigators and then granted another 59% decrease to the original 24 months because of Pepper’s lack of violent history, his post-sentencing history, and the disparity between Pepper’s sentence and those of his co-defendants. See Id. The Eighth Circuit reversed and remanded because, while the 40% decrease for assisting the government was not an abuse of discretion, the district court based the additional 59% decrease on impermissible factors. See Id. at 41112. The Eighth Circuit asserted that the district court impermissibly double-counted Pepper’s lack of criminal history in sentencing because the court did not sufficiently differentiate Pepper's lack of violent history from his lack of criminal history. See Id. at 412. The Eighth Circuit also held that post-sentencing rehabilitation is a prohibited factor in resentencing because it includes factors that could not have been used at the original sentencing. See Id. at 413.

Pepper appealed to the Supreme Court of the United States, which granted certiorari and vacated the decision, asking the Eighth Circuit to reconsider Pepper's case in light of Gall v. United States. See Pepper v. U.S., 552 U.S. 1089 (2008). In Gall, the Supreme Court held that all sentences, whether or not they are within the Sentencing Guidelines, are to be reviewed by the courts of appeal under a deferential, abuse-of-discretion standard. See 128 S. Ct. 586, 591 (2007). A district court judge must adequately explain the reason for a variance from the Sentencing Guidelines and a large variance requires a more significant justification. See Id. at 597.

On remand, the Eighth Circuit agreed with its prior determination that the district court used improper factors at sentencing and did not adequately explain its justifications for the reduced sentence, so it reversed and remanded for resentencing. See U.S. v. Pepper, 518 F.3d 949, 953 (8th Cir. 2008) ("Pepper III"). On remand, before a different judge, the district court sentenced Pepper to 65 months’ imprisonment. See U.S. v. Pepper, 570 F.3d 958, 962 (8th Cir. 2009) ("Pepper IV"). The new judge determined that he was not required to follow the previous district court judge’s decision to allow for a 40% downward variance for cooperation. See Id. at 962. The new judge opted for a 20% reduction in sentence for cooperation, resulting in a suggested range of 77 to 97 months’ imprisonment under the Guidelines; the court granted an additional 12-month variance, resulting in a 65-month sentence. See Id.

On appeal, the Eighth Circuit affirmed and determined that Pepper was not entitled to a 40% sentence reduction for cooperation under the law of the case doctrine simply because the first judge determined that 40% was the proper reduction. See Pepper IV, 570 F.3d at 96364. This doctrine states that issues already decided may not be re-decided. See Id. at 963. The Eighth Circuit also restated that post-sentencing rehabilitation is an impermissible factor for consideration in resentencing. See Id. at 96566. Pepper appealed, and after the Supreme Court granted certiorari, the district judge ordered Pepper's release from prison in July 2010. See Brief for Petitioner at 17.


The case presents an unusual situation in that the United States agrees with Petitioner Jason Pepper that post-sentencing rehabilitation is an appropriate factor for courts to consider during resentencing. As a result, the Supreme Court appointed Adam Ciongoli to argue the position held by the Eighth Circuit Court of Appeals. See, Marcia Coyle, Brief of the Week: Conflict Over Rehabilitation and Resentencing. However, Pepper and the United States disagree over the amount of discretion given to the second sentencing judge. Pepper contends that the sentencing judge was limited by previous decisions under the law of the case doctrine, while the United States argues that the second sentence was valid under Eighth Circuit and Supreme Court precedent. See Brief for Petitioner, Jason Pepper at 50; Brief for Respondent, the United States of America at 16.

Post-Sentencing Rehabilitation as a Factor in Sentencing Variations

Both Pepper and the United States disagree with the Eighth Circuit’s decision to categorically prohibit consideration of post-conviction rehabilitation when determining whether a defendant is entitled to a variance from the Federal Sentencing Guidelines. See Brief for Petitioner at 22; Brief for the Respondent at 15. Specifically, Pepper contends that the Eighth Circuit’s refusal to consider such a factor during the sentencing phase violates 18 U.S.C. § 3661 and 18 U.S.C. § 3553(a). See Brief for Petitionerat 30. Section 3661 permits district court judges to consider a criminal defendant's qualities and background information during sentencing. See id. at 27. Additionally, Section 3553(a)(1) provides that district courts must consider the background and character traits of the defendant. See id. at 29. Pepper notes that neither provision excludes information pertaining to a defendant's post-sentencing rehabilitation. See id.Pepper therefore claims that the Eighth Circuit's restriction on the district judge's discretion necessarily violates the plain language of the statutes. See id. at 27, 29.

Ciongoli counters Pepper’s reliance on Sections 3553(a) and 3661 by arguing that 18 U.S.C. § 3742(g) intentionally limits the scope of factors that the court may consider during resentencing. See Brief of Amicus Curiae Adam G. Ciongoli in Support of the Judgment Below at 23–24, 36. Ciongoli contends that the plain language of Section 3742(g) forbids consideration of post-sentencing rehabilitation. See Id. at 5. Ciongoli reads the provision to prohibit sentences that stray from the Sentencing Guidelines unless the grounds upon which the variance is based were specifically mentioned in the previous sentencing. See Id. Ciongoli contends that such an interpretation does not conflict with the holding inUnited States v. Booker because 18 U.S.C. § 3742(g) does not demand sentencing based on the Guidelines; rather, it simply limits the information upon which the district court may base its resentencing decision. See Id. at 13. Additionally, Ciongoli argues that the provision protects the role of the appellate courts by preventing the district courts from evading the instructions of the appellate court by formulating new grounds for resentencing on remand. See Id. at 13–14.

Moreover, Ciongoli contends that allowing courts to consider post-sentencing rehabilitation contradicts the legislative intent and language of 18 U.S.C. § 3553(a). See Brief of Ciongoli at 23. In particular, Ciongoli notes that consideration of post-sentencing rehabilitation upsets Section 3553(a)(6), which requires courts to strive to avoid sentencing disparities among individuals who have comparable records and who have been convicted of similar offenses. See Id. at 26.

Ciongoli also argues that considering post-sentencing rehabilitation directly violates Sentencing Commission policy statements that prohibit such consideration, thereby ignoring the mandate of 18 U.S.C. § 3553(a)(5)(A), which requires sentencing courts to consider the policy statements. See Brief of Ciongoli at 31. While Pepper recognizes that policy statements in the Sentencing Guidelines prohibit consideration of post-sentencing rehabilitation for purposes of departure from the Guidelines, he contends nonetheless that these statements do not constrain the authority of a court when considering a sentencing variance under Section 3553(a). See Brief for Petitioner at 30–31. The United States agrees, claiming thatUnited States v. Booker rendered the Guidelines merely advisory. See Brief for Respondent at 38. Following that decision, says the United States, district courts are instructed to consider the appropriate Sentencing Guidelines, and then take into account the elements set forth in Section 3553(a). See id.

Pepper also disagrees with the standard of review employed by the Eighth Circuit in considering the district court's sentencing decision. See Brief for Petitioner at 3235. Pepper contends that in Booker and Gall, the Supreme Court held that once the district judge determines the appropriate guideline range and reviews the factors listed in Section 3553(a), the appeals courts must only review the district court's sentencing decision according to an abuse-of-discretion standard. See id. at 2324. Pepper states that the policy underlying this standard of review recognizes that the judge who presided over the case is better able to consider all of the facts and circumstances involved. See id. at 3435. Pepper contends that although the Eighth Circuit claimed to apply a reasonableness standard, its categorical prohibition against consideration of post-sentencing rehabilitation involved a de novo standard of review. See id. at 35.

Discretion of a New Judge in Resentencing a Defendant

Pepper argues that the law of the case doctrine restricts the ability of one district judge to overturn another district judge's decisions in the same case. See Brief for Petitioner at 51. Pepper claims that the doctrine allows a district judge to revise the earlier determination only upon providing a compelling reason that demonstrates the special circumstances of the case. See id. at 5152. Pepper cites several policy reasons for the rule, including the litigants' reasonable expectations that the case will continue as expected regardless of a change in judges, the need to provide litigants with a clear understanding of which issues are still in dispute, the importance of finality, and the need to avoid judge-shopping. See id. at 5354. According to Pepper, the district judge in the present case appeared to merely disagree with the earlier sentence and provided no compelling or special reason to justify the need to upset the previous decision. See id. at 5556.

The United States argues that Pepper III did not restrict the district judge's ability to reconsider the appropriate sentencing departure. See Brief for the Respondent at 2122. The United States notes that upon determining that a sentence is erroneous, the court of appeals may either grant a general remand, which involves the district court to resentence the defendant de novo, or a limited remand, which permits the district court to resentence the individual only on certain issues. See id. at 23. In Pepper III, the Eighth Circuit did not limit its remand to specific issues. See id. at 26. The United States claims that the Eighth Circuit has long held that such silence necessarily authorizes the district court to resentence de novo. See id.

The United States also disagrees with Pepper's proposed application of the law of the case doctrine, arguing that previous orders in the case did not require the district judge to uphold the earlier sentencing decision. See Brief for the Respondent at 15. The United States contends that Pepper was not entitled to the same sentence at his 2009 resentencing because the court of appeals had simply held that the 40% downward departure was reasonable, not that it was necessary. See id. at 17. Furthermore, says the United States, the district court earlier indicated that a 40% departure was a "close call," intimating that such a departure likely expressed a limit, and that the circuit court would also find a lesser departure of 20% reasonable. See id. at 1819. The United States also argues that the Supreme Court later vacated the earlier Eighth Circuit decision, and thus the earlier decision did not obligate the district court to follow the previous sentencing decision. See id. at 19. And despite Pepper's contention that the district court was obligated to follow the Eighth Circuit's decision, the United States contends that the court never ruled on the departure-at-sentencing issue. See id. at 20. While Pepper reads the Eighth Circuit's silence on the issue to mean that there was no error, the United States claims that the appeals court simply never decided the issue and thus the decision is not binding on the departure issue. See id. at 2021.


In Pepper v. U.S., the Supreme Court has the opportunity to address a circuit split on whether to permit post-sentencing rehabilitation in resentencing proceedings. Post-sentencing rehabilitation is not a factor which courts can use for criminals whose sentences were never set aside. The Eighth Circuit ruled that since a resentencing is a replacement for the original set-aside sentence, resentencing courts should only use the information which was available at the time of the original sentencing. See Pepper IV, 570 F.3d at 96566.

Adam Ciongoli agrees with the Eighth Circuit that post-sentencing behavior should be an impermissible factor in resentencing. See Brief of Amicus Curiae Adam G. Ciongoli in Support of the Judgment Below at 5. He argues that it would be unfair to consider post-sentencing behavior in resentencing because only those defendants lucky enough to have their sentences set aside would be able to take advantage of post-sentencing behavior. See Id. at 27. Those defendants who do not have their sentences set aside are ineligible for resentencing and therefore cannot have their post-sentencing behavior produce a downward variance in their original sentence. See Id. Ciongoli argues that using post-sentencing behavior for some defendants would cause the sentencing disparities that Congress sought to avoid in creating the Sentencing Guidelines. See Id. at 28. Eliminating sentencing disparities between similarly situated defendants promotes fairness and certainty in sentencing. See Id. at 32. Ciongoli contends that defendants are not harmed by excluding post-sentencing factors on resentencing because there are already procedures which recognize defendants' post-sentencing rehabilitation efforts. See Id. at 38. For example, prisoners may earn "good time credit" by complying with prison regulations and working towards a degree. See Id. at 39.

Both Pepper and the United States agree that post-sentencing rehabilitation is a permissible factor in determining whether a defendant should receive a sentencing variance from the Sentencing Guidelines. See Brief for Petitioner, Jason Pepper at 26; Brief for Respondent, the United States of America at 15. The United States asserts that information which was not known at the time of sentencing, such as health conditions, rehabilitation, or post-sentence offenses should impact the type of sentence a defendant receives. See Brief for Respondent at 14. Families Against Mandatory Minimums ("FAMM") agrees that post-sentencing rehabilitation should be a permitted factor in resentencing. See Brief of Amicus Curiae Families Against Mandatory Minimums in Support of Petitioner at 5. FAMM argues that a humane justice system must consider the life experiences of the defendant, including post-sentence rehabilitation. See Id. at 18. FAMM states that courts may impose a greater punishment than necessary for a particular defendant if they do not consider post-sentencing rehabilitation. See Id. FAMM asserts that allowing the evidence is the ethical thing to do because defendants, like Mr. Pepper, who have shown nearly total rehabilitation before resentencing, deserve to have the court consider and reward that rehabilitation. See Id. at 18, 21. The Federal Public and Community Defenders and the National Association of Federal Defenders (collectively "FPCD") argue that one of the goals of the criminal justice system is rehabilitation of offenders. See Brief of Amici Curiae The Federal Public Defenders and the National Association of Federal Defenders in Support of Petitioner at 78. The FPCD cites studies which have shown that lengthy imprisonment of offenders, who would otherwise have a low risk of recidivism, increases recidivism by interfering with employment prospects and family relationships. See Id. at 18. Because judges may give lower sentences if they have a specific rehabilitative treatment goal, the FPCD asserts that it would be illogical to allow courts to grant lower sentences for prospective rehabilitation but not for actual rehabilitation that has occurred after sentencing. See Id. at 27.


The Supreme Court will have the opportunity to resolve a circuit split by determining whether post-sentencing rehabilitation is a proper factor in resentencing proceedings. The consideration of defendants' post-sentencing behavior may allow courts to avoid punishing defendants more than is necessary to achieve the rehabilitative goals of punishment. However, it may be inherently unfair to consider these factors, because only defendants whose sentences have been set aside would have the opportunity to present these factors for consideration. Additionally, the Court’s decision may clarify the district courts’ ability to use the law of the case doctrine where the reviewing court has not clearly addressed an issue.

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