Let this be a lesson to any young appellate lawyers who might be reading this: Focus on the result, not on the argument.
We’re wading through the various slip opinions and decisions that came down during March and April while we were on trial, and the Supreme Court decision in Pepper v. United States just floored us. In a nutshell, Pepper got a huge downward departure at sentencing, for providing substantial assistance, getting 24 months plus five years of supervised release. After Pepper had served his time and was now out on supervised release, the Eighth Circuit said his sentence was improper, and remanded for new sentencing. The original departure was about 75% off the guideline. At resentencing, the judge took 40% off, but then dropped it down to 24 months again based on extensive evidence that Pepper had gotten his life back on track in major ways. The government appealed again.
On the second appeal, the Eighth Circuit reversed again, saying that post-sentencing facts could not be considered in resentencing. Only facts known at the time of the original sentence could be applied. After a Supreme Court sojourn on Gall issues, the Circuit remanded for re-resentencing before a new judge. At this new resentencing, the new judge gave him only 20% off, or 65 months plus 12 months of supervised release.
Pepper appealed, of course, trying to get that original 40% departure. So it went to the Supreme Court again.
The Supremes held, quite correctly, that of course post-sentencing facts may be considered at a resentencing. It is absurd to argue otherwise. The prosecution would be allowed to present evidence of subsequent failings by the defendant, so why shouldn’t the defendant be allowed to present evidence of his rehabilitation?
So far, so good. But did that mean that Pepper was entitled to that original 40% reduction? No. Because “in his merits briefs to this Court, Pepper does not challenge the scope or validity of the Court of Appeals’ mandate ordering de novo resentencing, and thus has abandoned any argument that the mandate itself restricted the District Court from imposing a different substantial assistance departure.” And the “law of the case” doctrine doesn’t apply in a de novo proceeding when the entire sentence had been set aside, which is what happened here.
This is such a forehead-smacking moment.
The Supremes are all but saying that Pepper should have said the Eighth Circuit didn’t have the authority to set aside the entire sentence and order a de novo resentencing. Had the argument been made, the Court might have held that the Circuit could only have remanded for resentencing applying specific rules, but couldn’t order a complete do-over in front of a new judge.
But Pepper didn’t ask for that.
So Pepper didn’t get it.
Instead, all he gets now is a re-resentencing that is permitted to take into account his post-sentencing rehabilitation. Which may or may not get him the lighter sentence he originally sought. If appellate counsel had kept their eyes on the goal of canceling the Circuit’s de novo order, they would have argued for it. And they might have gotten it. Instead, they focused on making a “law of the case” argument that, while clever, made little sense if the de novo thing was still there.
(PS — The concurring opinions are worthwhile reading, as they lay out some of the ongoing problems in the post-Booker world. Thomas’s dissent, however, goes too far. He would abandon the individual justice of sentencing where judges have discretion, and would return to the one-size-fits-all injustice of the Guidelines as Mandates. Thank goodness he’s a minority of one in this case.)