On March 2, 2011, the U.S. Supreme Court decided Pepper v. United States, No. 09-6822, holding that when a criminal defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's postsentencing conduct, including rehabilitation, and may rely on such evidence to support a downward departure from advisory sentencing guidelines.

After pleading guilty to drug charges, Jason Pepper was sentenced to 24 months in prison, a nearly 75% downward departure from the low end of the sentencing guidelines range based on his substantial assistance to the government. The sentencing decision went up to the Eighth Circuit several times, with the Eighth Circuit repeatedly reversing and remanding for resentencing. In the meantime, Pepper had finished his 24-month sentence and was serving his supervised release. He had completed a 500-hour drug rehabilitation program, reconciled with his father, enrolled in college, gotten a job and a promotion, and married and was supporting a family. At the last resentencing, the court reduced a different judge's earlier downward departure, concluding that its resentencing could not take into account Pepper's post-sentencing rehabilitation. The Eighth Circuit affirmed, and also held that the law-of-the-case doctrine did not require the resentencing court to reduce the sentence by the same amount as the previous judge had reduced it.

The Supreme Court vacated in part, affirmed in part, and remanded. The Court held 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 advisory Federal Sentencing Guidelines range. Citing the longstanding judicial principle that "the punishment should fit the offender and not merely the crime" and the judicial discretion in sentencing reaffirmed in its Booker decision, the Court concluded that a resentencing court may consider postsentencing rehabilitation among all the other permissible sentencing factors. The Court quoted Congress's statement disavowing any limitation on the evidence about the "background, character, and conduct" of a defendant that a court may consider in determining a sentence, and noted that evidence of postsentencing rehabilitation may be "highly relevant" to several common sentencing factors, including likelihood of recidivism. The Court expressly invalidated the provision in 18 U.S.C. § 3742(g)(2) that prohibits a district court at resentencing from imposing a sentence outside the Federal Sentencing Guidelines range except on a ground it relied on at the prior sentencing.

On a separate issue, the Court held that the law-of-the-case doctrine did not require the resentencing court to apply the same percentage departure from the guidelines range for substantial assistance that had been applied at Pepper's prior sentencing.

Justice Sotomayor delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, and Ginsberg joined, and in which Justices Breyer and Alito joined in part. Justice Breyer filed an opinion concurring in part and concurring in the judgment. Justice Alito filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Justice Thomas filed a dissenting opinion. Justice Kagan took no part in the consideration or decision of the case.

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