The Pepper cert grant and post-sentencing rehabilitation as a sentencing factor

As noted in this earlier post, this morning the Supreme Court granted cert in Pepper v. United States (docket here), which will call for a review of this Eighth Circuit opinion.  Though I have not yet tracked down the cert petition in Pepper, a helpful reader sent me the opposition to cert from the Solicitor General's office, and here are the questions presented appearing in this cert op (which can be downloaded below):

1. Whether, at petitioner’s resentencing following the government’s appeal, the district court was required to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s initial sentencing.

2. Whether post-sentencing rehabilitation is an impermissible basis for varying downward at resentencing from the advisory Guidelines range under 18 U.S.C. 3553(a).

Download Pepper_Cert_Op

Interestingly, though the SG's cert op in Pepper says the Eighth Circuit got Question 1 right, the SG concedes that the Eighth Circuit got Question 2 wrong.  Here is what the SG (none other that now-SCOTUS-nominee Elena Kagan) says on this front:

No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing courts to consider “the history and characteristics of the defendant.” 18 U.S.C. 3553(a)(1).  That phrase encompasses a defendant’s rehabilitative efforts, whether they occur before or after his original sentencing. Consideration of a defendant’s rehabilitation after his original sentencing may also be relevant to “the need for the sentence imposed” on resentencing “to protect the public from further crimes of the defendant,” another Section 3553(a) factor.  18 U.S.C. 3553(a)(2).   Accordingly, the court of appeals erred in concluding that, under the advisory Guidelines regime, postsentencing rehabilitation is never a permissible factor to consider in varying downward under Section 3553(a) from the advisory Guidelines range.

The SG in the Pepper cert op goes on to suggest that a GVR rather than plenary review is all that is needed to correct the Eighth Circuit's error here.  But obviously, the Justices decided that it wanted to give Pepper plenary review.