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Help Yourself for Sentencing

A defendant's actions before, during and after sentencing can have a significant impact on his or her future. The Supreme Court Highlighted this issue in Pepper v. United States (No. 09-6822).

Whatever you’ve done can and will be used to help at sentencing:

Sentencing is a difficult time for everybody surrounding a criminal trial. Victims and their families are never happy with a merciful prison term, while convicts always want less time than what they received. This gap will never close.

For those sitting with their lawyer at the defense table, anything that can be used to lessen a possible prison term is used on Sentencing Day. On March 2, 2011 the Supreme Court of the United States reversed a decision by the Eighth Circuit court and enabled more information to be used at sentencing in favor of the defendant.

In Pepper v. United States (No. 09-6822), the Supreme Court said that district courts may consider post-sentencing rehabilitation at a resentencing hearing. Upon hearing this case, the Supreme Court reversed the circuit decision claiming that post-sentencing rehabilitation was not allowed to be considered at a resentencing hearing. In simple terms: although some rehabilitation happened after the original sentencing date, it did not keep those actions from being used on a defendant’s behalf.

For a more in-depth analysis of the Pepper case and its ramifications, check out the analysis portion at the bottom of this post.

What this Means to You:

Everything a defendant does before and after being charged with a crime is looked at by the presiding court. Use this information to your advantage! Voluntarily entering treatment while on pretrial status (if bond is granted) can take years off of a potential sentence. Screwing up while on pretrial can add those same years onto a sentence, so stay diligent!


After pleading guilty and receiving a sentence containing a very significant downward departure, the United States Attorney appealed, the sentence was vacated, and remanded back to the district court for resentencing. The sentence was again pronounced, appealed by the US Attorney, vacated, and remanded for resentencing. The Eighth Circuit court vacated the sentence of Mr. Pepper on three separate occasions because — despite sentencing guidelines being only advisory — it determined that the sentence was reduced too much.

The fourth trip though the courts (referred to by the Supreme Court Slip Opinion as Pepper IV), the district court imposed a 65-month sentence. That sentence was affirmed on Pepper’s appeal by the Circuit Court, and then granted Certiorari.

Common sense would dictate that, after decisions like Booker and Gall by the Supreme Court, a district judge’s discretion would exist above appeal so long as that decision was constitutional. However, the Eighth Circuit disagreed with the sentencing below, and held that using post-sentencing rehabilitation as grounds for downward departure at a resentencing was not proper.

This type of disregard for a judge using his own “Judgment” is the reason Gall was granted Certiorari after Booker in the first place. The Supreme Court felt it needed to, once again, make a judge’s judgment legal.

To drive this point home, the high court held the following:

“[C]onsistent with the principle that “the punishment should fit the offender and not merely the crime,” Williams v. New York, 337 U. S. 241, 247, this Court has observed a consistent and uniform policy “under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law,” id., at 246, particularly “the fullest information possible concerning the defendant’s life and characteristics,” id., at 247. That principle is codified at 18 U. S. C. §3661, which provides that“[n]o limitation shall be placed on the information” a sentencing court may consider “concerning the [defendant’s] background, character, and conduct,” and at §3553(a), which specifies that sentencing courts must consider, among other things, a defendant’s “history and characteristics,” §3553(a)(1). . .”

So, if the law says that no limitation shall be placed on the information a sentencing court may use at sentencing, why did the Eighth Circuit ignore 18 U.S.C. §3661 on three separate occasions? It seems as though it simply did not like the lack of a stiff sentence for Pepper, regardless if that sentence was given under sound legal judgment. The Supreme Court disagreed, vacated in part, affirmed in part, and remanded.

By PCR Consultants
Pretrial, Incarceration, Post-Release and Probation Expert Witness Services
Eric Matthews works and writes for PCR Consultants, a firm of experts on matters concerning the federal criminal justice system, the federal Bureau of Prisons, and United States Probation. See our profile here or visit our website for more information.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.

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