Pepper v. United States

• Decision Date: 02 March 2011
• Docket Number: No. 09–6822.,09–6822.
• Parties: Jason PEPPER, Petitioner, v. UNITED STATES.
• Court: U.S. Supreme Court

562 U.S. 476

131 S.Ct. 1229

179 L.Ed.2d 196

Jason PEPPER, Petitioner,

v.UNITED STATES.

No. 09–6822.

Supreme Court of the United States

Argued Dec. 6, 2010.

Decided March 2, 2011.

Alfredo Parrish, appointed by the Court, for Petitioner.

Roy W. McLeese, III, for respondent supporting the petititioner.

Adam G. Ciongoli, for amicus curiae, appointed by this Court, supporting the judgment below.

Neal Kumar Katyal, Acting Solicitor General, Washington, D.C., for United States.

Alfredo Parrish, Parrish Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher LLP, Des Moines, Iowa, Leon F. Spies, Mellon And Spies, Iowa City, Iowa, for Petitioner.

Neal Kumar Katyal, Acting Solicitor General, Lanny A. Breuer, Assistant Attorney General, Roy W. McLeese III, Acting Deputy Solicitor General, Jeffrey B. Wall, Assistant to the Solicitor General, William C. Brown, Nina Goodman, Washington, D.C., for United States.

Justice SOTOMAYOR delivered the opinion of the Court.

This Court has long recognized that sentencing judges "exercise a wide discretion" in the types of evidence they may consider when imposing sentence and that "[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 246–247, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that "[n]o limitation shall be placed on the information" a sentencing court may consider "concerning the [defendant's] background, character, and con-duct," and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including "the history and characteristics of the defendant," § 3553(a)(1). The United States Court of Appeals for the Eighth Circuit concluded in this case that the District Court, when resentencing petitioner after his initial sentence had been set aside on appeal, could not consider evidence of petitioner's rehabilitation since his initial sentencing. That conclusion conflicts with longstanding principles of federal sentencing law and Congress' express directives in §§ 3661 and 3553(a). Although a separate statutory provision, § 3742(g)(2), prohibits a district court at resentencing from imposing a sentence outside the Federal Sentencing Guidelines range except upon a ground it relied upon at the prior sentencing—thus effectively precluding the court from considering postsentencing rehabilitation for purposes of imposing a non-Guidelines sentence—that provision did not survive our holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and we expressly invalidate it today.

We hold that when a defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals' ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner's prior sentencing.

I

In October 2003, petitioner Jason Pepper was arrested and charged with conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846. After pleading guilty, Pepper appeared for sentencing before then-Chief Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa. Pepper's sentencing range under the Guidelines was 97 to 121 months.¹ The Government moved for a downward departure pursuant to USSG § 5K1.1 based on Pepper's substantial assistance and recommended a 15 percent downward departure.² The District Court, however, sentenced Pepper to a 24–month prison term, resulting in an approximately 75 percent downward departure from the low end of the Guidelines range, to be followed by five years of supervised release. The Government appealed Pepper's sentence, and in June 2005, the Court of Appeals for the Eighth Circuit reversed and remanded for resentencing in light of our intervening decision in Booker (and for another reason not relevant here). See United States v. Pepper, 412 F.3d 995, 999 (2005) (Pepper I) . Pepper completed his 24–month sentence three days after Pepper I was issued and began serving his term of supervised release.

In May 2006, the District Court conducted a resentencing hearing and heard from three witnesses. In his testimony, Pepper first recounted that while he had previously been a drug addict, he successfully completed a 500–hour drug treatment program while in prison and he no longer used any drugs. App. 104–105. Pepper then explained that since his release from prison, he had enrolled at a local community college as a full-time student and had earned A's in all of his classes in the prior semester. Id., at 106–107. Pepper also testified that he had obtained employment within a few weeks after being released from custody and was continuing to work part-time while attending school. Id., at 106–110. Pepper confirmed that he was in compliance with all the conditions of his supervised release and described his changed attitude since his arrest. See id., at 111 ("[M]y life was basically headed to either where—I guess where I ended up, in prison, or death. Now I have some optimism about my life, about what I can do with my life. I'm glad that I got this chance to try again I guess you could say at a decent life .... My life was going nowhere before, and I think it's going somewhere now").

Pepper's father testified that he had virtually no contact with Pepper during the 5–year period leading up to his arrest. Id., at 117. Pepper's drug treatment program, according to his father, "truly sobered him up" and "made his way of thinking change." Id., at 121. He explained that Pepper was now "much more mature" and "serious in terms of planning for the future," id., at 119, and that as a consequence, he had re-established a relationship with his son, id., at 118–119.

Finally, Pepper's probation officer testified that, in his view, a 24–month sentence would be reasonable in light of Pepper's substantial assistance, postsentencing rehabilitation, and demonstrated low risk of recidivism. Id., at 126–131. The probation officer also prepared a sentencing memorandum that further set forth the reasons supporting his recommendation for a 24–month sentence.

The District Court adopted as its findings of fact the testimony of the three witnesses and the probation officer's sentencing memorandum. The court granted a 40 percent downward departure based on Pepper's substantial assistance, reducing the bottom of the Guidelines range from 97 to 58 months. The court then granted a further 59 percent downward variance based on, inter alia, Pepper's rehabilitation since his initial sentencing. Id., at 143–148.³ The court sentenced Pepper to 24 months of imprisonment, concluding that "it would [not] advance any purpose of federal sentencing policy or any other policy behind the federal sentencing guidelines to send this defendant back to prison." Id., at 149–150.

The Government again appealed Pepper's sentence, and the Court of Appeals again reversed and remanded for resentencing. See United States v. Pepper, 486 F.3d 408, 410, 413 (C.A.8 2007) (Pepper II) . The court concluded that, while it was "a close call, [it could not] say the district court abused its discretion" by granting the 40 percent downward departure for substantial assistance. Id., at 411. The court found the further 59 percent downward variance, however, to be an abuse of discretion. Id., at 412–413. In doing so, the court held that Pepper's "post-sentencing rehabilitation was an impermissible factor to consider in granting a downward variance." Id., at 413. The court stated that evidence of postsentencing rehabilitation " ‘is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing,’ " and permitting courts to consider post-sentencing rehabilitation at resentencing "would create unwarranted sentencing disparities and inject blatant inequities into the sentencing process." Ibid .⁴ The Court of Appeals directed that the case be assigned to a different district judge for resentencing. Ibid.

After the Court of Appeals' mandate issued, Pepper's case was reassigned on remand to Chief Judge Linda R. Reade. In July 2007, Chief Judge Reade issued an order on the scope of the remand from Pepper II, stating that "[t]he court will not consider itself bound to reduce [Pepper's] advisory Sentencing Guidelines range by 40% pursuant to USSG § 5K1.1." United States v. Pepper, No. 03–CR–4113–LRR, 2007 WL 2076041, *4 (N.D.Iowa 2007). In the meantime, Pepper petitioned this Court for a writ of certiorari, and in January 2008, we granted the petition, vacated the judgment in Pepper II, and remanded the case to the Court of Appeals for further consideration in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See Pepper v. United States, 552 U.S. 1089, 128 S.Ct. 871, 169 L.Ed.2d 715 (2008).

On remand, the Court of Appeals held that Gall did not alter its prior conclusion that "post-sentence rehabilitation is an impermissible factor to consider in granting a downward variance." 518 F.3d 949, 953 (C.A.8 2008) (Pepper III) . The court again reversed the sentence and remanded for resentencing.

In October 2008, Chief Judge Reade convened Pepper's second resentencing hearing. Pepper informed the court that he was still attending school and was now working as a supervisor for the night crew at a warehouse retailer, where he was recently selected by management as "associate of the year" and was likely to be promoted the following January. App....