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August 26, 2010

Pepper providing a bit of spice to SCOTUS sentencing docket

Here at the National Law Journal,  Marcia Coyle has a new piece on the Pepper federal sentencing case on the Supreme Court's docket for the upcoming term.  The piece is headlined "Brief of the Week: Conflict over rehabilitation and resentencing," and here are excerpts:

The [Pepper] case offers the justices an opportunity to provide some guidance to sentencing judges about how much weight to give an offender's successful rehabilitation if he or she must be resentenced following appeals....

Pepper ... actually sought prison time in order to get into a 500-hour drug treatment program offered at a federal prison in Yankton, S.D. The judge sentenced him to 24 months in prison so he could qualify for the drug program. In 2005, he finished his prison sentence and began five years of supervised release.

In the meantime, however, the government appealed the 24-month sentence. In 2009, after three resentencing hearings, four reviews by the U.S. Court of Appeals for the 8th Circuit, another appeal by the government and an appeal by Pepper, Pepper was ordered back to prison by a different sentencing judge for an additional 41 months.

At the time of that last sentencing, Pepper had turned 29, had been married for two years to a woman with a 7-year-old daughter and was their primary support. He also was attending college full-time and was a Sam's Club overnight assistant manager who had been named associate of the year.

In Pepper's case, the 8th Circuit said, "We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. '[E]vidence of [a defendant]'s post-sentence 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.'"

Pepper's counsel, Alfredo Parrish of Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher in Des Moines, Iowa, contends that the circuits are split on whether judges may consider post-sentencing rehabilitation in granting a downward departure from a guideline-recommended sentence....

Parrish relies in part on Gall v. U.S., a 2007 decision in which the justices rejected the 8th Circuit's policy that sentencing judges must justify downward departures with findings of extraordinary circumstances. The Gall case involved post-offense rehabilitation. "There appear to be hints in Gall that considering post-offense and post-sentencing rehabilitation in extraordinary circumstances is permissible at sentencing," Parrish said in his petition.

In a twist in the Supreme Court, the government now agrees with Pepper that post-sentencing rehabilitation is a factor to be considered. In its brief in opposition to Pepper's petition, then Solicitor General Elena Kagan wrote: "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.'"

The government had urged the court to vacate the 8th Circuit's judgment and remand the case for consideration of the government's latest views and recent case law. But the justices decided to hold arguments.

The justices appointed Adam Ciongoli, a former clerk to Justice Samuel Alito Jr. and now general counsel of Willis Group Holdings, to defend the 8th Circuit judgment.

And on July 22, the district judge who added the 41 months to Pepper's sentence — Chief Judge Linda Reade of the Northern District of Iowa — approved his release from prison pending the decision in the Supreme Court.

This is one of 11 cases from which now Justice Kagan has said she will recuse herself because of her involvement in the case. The Court has not scheduled arguments yet.

August 26, 2010 at 09:47 PM | Permalink


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Under Solicitor General Kagan's view, it is necessarily the case that post-original sentence BAD behavior also could be taken into account at a re-sentencing. (DiFrancesco, decided 30 years ago, disposed of the Double Jeopardy claim against an upward revision of the sentence).

If folks are willing to live with post-sentence bad behavior getting counted under the same rules as post-sentence good behavior, it's OK with me.

Sauce for the goose, etc.

P.S. Am I the only one disturbed that the government turns against its own victory in the Eighth Circuit simply because the administration changed? Having litigated for DOJ under administrations of both parties, I can tell you that is a highly irregular move.

Posted by: Bill Otis | Aug 27, 2010 1:09:40 AM

It's actually not "highly irregular" for the Solicitor General's office to take a different direction than the DOJ's position in the circuit court. In fact, over the last five or so terms, I think it has happened at least once each term. It probably happens even more in cert. petitions. The change of administration isn't what is the driving force behind the position changes. Rather, it's the fact that a different group of government lawyers is now looking at the case. And, in my experience, lawyers in the Solicitor General's office usually take a much broader view of the issue than the typical AUSA line attorney who often believes his or her sole job is to defend what happened below, no matter what. For example, it’s likely that the Solicitor General thinks it’s better policy to take into account post-sentencing rehabilitation, in part, because the flip will also be true: bad post-sentencing conduct can also be taken into consideration. Plus, it just seems like good policy to take into account post-sentencing rehabilitation, not the least of which is that it gives prisoners an incentive to take extraordinary measures to try to rehabilitee themselves if they have a sentencing appeal pending and believe they might get a new sentencing hearing.

Posted by: anon | Aug 27, 2010 9:46:15 AM

Bill Otis,

I was thinking it was more a matter that they looked around at the other circuits and realized perhaps their position wasn't so tenable and were trying to salvage something.

Too bad Kagan needed to recuse, it's going to be interesting to see how Booker derived cases shake out after so much change on the court.

Posted by: Soronel Haetir | Aug 27, 2010 9:48:13 AM

I assume the "victory" you're talking about, Bill, is the government's dogged efforts to return a responsible, productive family man to a prison cell.

What's really too bad in the Pepper case is that our vaunted federal justice system -- best in the whole darned world, don't you know -- has demonstrated yet again it values its incarceration totals over doing the right thing.

Oh I know, I know. Upholding the sanctity of draconian, mandatory-minimum drug laws is always the right thing to do here in Incarceration Nation.

BTW: It's good to see Judge Reade back on the bench after her temporary undercover assignment with ICE and the federal prosecutor's office in Des Moines.

Posted by: John K | Aug 27, 2010 9:56:27 AM

anon --

"The change of administration isn't what is the driving force behind the position changes. Rather, it's the fact that a different group of government lawyers is now looking at the case."

Your second sentence condradicts your first. Think about it.

"And, in my experience, lawyers in the Solicitor General's office usually take a much broader view of the issue than the typical AUSA line attorney who often believes his or her sole job is to defend what happened below, no matter what."

And your "experience" is.......what?

Read the article again. You will see that the government took two appeals. Any appeal initiated by the government must be approved personally by the Attorney General, the Solicitor General, or a Deputy SG designated by the SG, 18 USC 3742(b). The SG's approval is almost always given on the recommendation of a Deputy Solicitor General (generally although not always Michael Dreeben in criminal cases) and an Assistant to the SG, to whom the cases is routed after it's looked at by the Appellate Section of the Criminal Division.

What this means is that the government's prior appeals were anything but solely the work of the line AUSA, whom you blockheadedly belittle. Both were approved by the SG. The current SG's reversal is just that.

It is a mark of how far the current DOJ has turned its back on its client, and of its increasing politicization, that the Supreme Court has to appoint someone from the outside to defend the government's victory in the court below. If the shoe were on the other foot, and a defense lawyer bailed on his client in the Supreme Court, he would be drummed out of the profession. The government stands in a different position as an institutional litigant, but its position is not so far removed from normal ethics as to make its current ploy anything but highly irregular, which, I repeat, it is.

Posted by: Bill Otis | Aug 27, 2010 12:18:54 PM

Bill --

In your experience, how closely does the SG's office usually vet the prosecutor's contemplated arguments before authorizing an appeal? I ask because this seems to be a case in which a government appeal was clearly warranted -- the district court calculated a Guidelines range of 97 to 121 months' imprisonment, but imposed a 24-month sentence. And, throughout the lengthy appellate proceedings in this case, the government has had another complaint beyond the district court's consideration of post-sentencing rehabilitation -- viz., that the district court have too much of a discount for the defendant's substantial assistance. So I wonder how much to read into SG's appeal authorization: Does it mean that the SG approved all of the prosecutor's arguments, including that post-sentencing rehabilitation cannot be considered? Or just that the SG agreed that an appeal was warranted more generally? (I'm really asking; I don't know the answer.)

It seems to me that, if you can get past the fact that the SG's office authorized the government's appeals to the CA8, there's nothing really remarkable here. Sure it's rare for the SG not to defend the government's victory in the court of appeals. But it happened several times during the Bush administration too. See Nelson v. United States, 129 S. Ct. 890 (2009); Nunez v. United States, 128 S. Ct. 2990 (2008); Stephenson v. United States, 128 S. Ct. 2991 (2008); Greenlaw v. United States, 554 U.S. 237 (2008); Irizarry v. United States, 553 U.S. 708 (2008); Smith v. United States, 549 U.S. 1106 (2007).

Posted by: a poster | Aug 27, 2010 3:23:43 PM

a poster --

"In your experience, how closely does the SG's office usually vet the prosecutor's contemplated arguments before authorizing an appeal?"

Pretty darn closely. This is how it works: The line AUSA gets a pie in the face at sentencing and runs screaming to the chief of appeals in the USAO. Sometimes there's nothing to be done about it, or it's not worth the candle, and that's where it stops. If the chief concludes the government has a good case, he will authorize the filing of the notice of appeal and write a memo to the Criminal Divsion at Main Justice recommeding appeal, and setting forth the arguments to be used. If the Criminal Division tanks it, that is generally the end of the game. If Criminal goes along, its memo and the USAO's memo go to an Assistant to the SG, who is generally some redhot recent graduate of Stanford or Harvard or something like that. Some are just coming off their Supreme Court clerkships.

That is where the decision actually gets made. Ninety percent of the time, the call made by the Assistant to the SG is what happens. His memo to the Deputy SG generally sets forth the arguments they will approve. If the chief at the USAO disagrees, he can hash it through with the Assistant.

(I was not shy about doing this. Indeed, the only people who thought I was more annoying than the ideological defense bar were the government attorneys in the SG's Office. I compounded my annoyingness by actually showing up in their offices to argue. Since I was in the EDVA (Alexandria), this was easy. And, I must confess, fun).

The Deputy SG gets all the memos, which are typed. He will interliniate, often at length, about which arguments should be emphasized and which soft-peddled. Then there's a slip sheet for the SG's signature.

I don't know how it works in other offices, but in EDVA, when I was there, I would sometimes let the line AUSA write the brief. More often -- and always when I thought the case was a potential SCOTUS candidate -- I wrote it.

To this day, I miss the combat. There is a great deal more money to be made outside the government, but that's where I had the most fun. I actually don't care that much about money -- if I did, I wouldn't have been there for 18 years.

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