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June 28, 2010
SCOTUS takes up long-running federal sentencing case from Eighth Circuit
It appears that among the cert grants from the Supreme Court this morning is Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion. This Pepper case appears to have gone up and down the federal judicial ladder on sentencing issues for years, and it looks like Pepper might be a variation on the important Gall case from the Eighth Circuit that SCOTUS reversed a few years ago. I will have a lot more on this important federal sentencing cert grant once I have a chance to review the particulars.
UPDATE: Because the Eighth Circuit's most recent Pepper decision implicates so many issues, it is hard to even know how significant the SCOTUS cert grant in this case could prove to be. That said, the case seems likely to provide the newer Justices with their most direct opportunity to express views on modern post-Booker federal sentencing realities.
June 28, 2010 at 10:25 AM | Permalink
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Comments
Can you find a link to the defendant's cert. petition?
Posted by: FPD | Jun 28, 2010 11:47:29 AM
I, too, am going to be anxious to read the petition to know exactly on what question(s) cert was granted. Maybe it has to do with what "abuse of discretion" means in sentencing appeals, which would be very helpful to resolve.
The procedural history of this case is long and -- from the Defendant's standpoint -- frustrating. The 8th Cir. has reviewed the sentence 4 times. The first two reversing and remanding a 24 month sentence (with a GL range of 97-121), the third time confirming the remand even in light of Gall, and this fourth time affirming a new sentence of 77 months (later lowered to 65 months under Rule 35).
It seems to me that the better case (again from a Defendant's view) for the Court to review was any of the first 3 appeals. The cert petition there would have been "Was the 8th Cir. correct in finding that the below GL sentence was an abuse of discretion?" If cert was going to be granted, that is the better issue, IMO, for review. As the case currently stands, the issue is whether the district court abused its discretion by not imposing a lower sentence. The latter argument is more difficult to win that the former.
Without reading the cert petition, the 8th Cir's opinion appears to raise the following questions:
1) Is post-sentence rehabilitation a relevant sentencing consideration at re-sentencing?
2) Is the cost of incarceration a valid basis for varying downward?
3) Was the sentence substantively unreasonable?
I think we'll have to see the cert petition (and the SG's response) to determine how significant the case might be.
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