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March 4, 2011

Is Pepper starting to add spice to federal sentencing proceedings?

The significant ruling by the Supreme Court this week in Pepper (basics here) has already impacted a on-going federal sentencing articles and projects of mine, and I am wondering if and how the Pepperruling is impacting on-going federal sentencing proceedings.  I suspect more than a few litigants with pending sentencing appeals are filing letters of supplemental authority based on Pepper, and perhaps some district courts have already referenced the ruling in sentencing decisions.  (Recall that there are, on average, more than 300 federal sentencings taking place every day in federal courts around the nation.)

I hope readers might use the comments to this post to report on any early impact from Pepper, and I also hope anyone who come across a sentencing opinion that has some Pepper added will send it my way.

Related posts on the Pepper ruling by the Supreme Court:

March 4, 2011 at 10:36 AM | Permalink


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Doug, I'n sure defense lawyers are flavoring Pepper in their breifs and using it in their arguments as I speak...But in reality fed judges don;t have the Gall to give it any weigtht....Pun intended, sorry)

Effectively the guidelines march on, for 95% of the defendents with drug cases...(excluding substantial assistance)


Posted by: Josh | Mar 4, 2011 11:09:38 AM

I think that Pepper will have minimal, if any effect. I remember when Blakely was decided; everyone thought it was going to be a sea change in federal sentencing. It had little effect on day-to-day cases, at least where I practice. Judges reacted hostilely to it and found any excuse they could to avoid applying it. Then came Booker, which purported to free judges entirely from the guidelines, but which really freed judges to rely on the guidelines to the same extent as before Blakely. I don't expect Pepper to have much more of an impact, except in a handful of cases. Also, Pepper is a two-edged sword: defendants with disturbing prison records might come to regret having their sentence overturned on appeal.

The upshot is I agree with Josh: judges seem to like the guidelines and they will continue to apply them. And why not? For all their problems, they at least provide a modicum of consistency, to the extent that's even possible these days, and no judge is in danger of her sentence being reversed if she properly follows the guidelines.

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