PEPPER v. UNITED STATES

OPINION OF THE COURT
PEPPER V. UNITED STATES
562 U. S. ____ (2011)

SUPREME COURT OF THE UNITED STATES
NO. 09-6822

JASON PEPPER, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[March 2, 2011]

   Justice Sotomayor delivered the opinion of the Court.

   This Court has long recognized that sentencing judges “exercise a wide discretion” in the types of evidence they may consider when imposing sentence and that “[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams v. New York, 337 U. S. 241, 246–247 (1949). Congress codified this principle 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 con-duct,” and at §3553(a), which sets forth certain factors that sentencing courts must consider, including “the history and characteristics of the defendant,” §3553(a)(1). The United States Court of Appeals for the Eighth Circuit concluded in this case that the District Court, when resentencing petitioner after his initial sentence had been set aside on appeal, could not consider evidence of petitioner’s rehabilitation since his initial sentencing. That conclusion conflicts with longstanding principles of federal sentenc-ing law and Congress’ express directives in §§3661 and 3553(a). Although a separate statutory provision, §3742(g)(2), prohibits a district court at resentencing from imposing a sentence outside the Federal Sentencing Guidelines range except upon a ground it relied upon at the prior sentencing—thus effectively precluding the court from considering postsentencing rehabilitation for purposes of imposing a non-Guidelines sentence—that provision did not survive our holding in United States v. Booker, 543 U. S. 220 (2005), and we expressly invalidate it today.

   We hold 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 now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals’ ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner’s prior sentencing.

I

   In October 2003, petitioner Jason Pepper was arrested and charged with conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U. S. C. §846. After pleading guilty, Pepper appeared for sentencing before then-Chief Judge Mark W. Bennett of the U. S. District Court for the Northern District of Iowa. Pepper’s sentencing range under the Guidelines was 97 to 121 months.[Footnote 1] The Government moved for a downward departure pursuant to USSG §5K1.1 based on Pepper’s substantial assistance and recommended a 15 percent downward departure.[Footnote 2] The District Court, however, sentenced Pepper to a 24-month prison term, resulting in an approximately 75 percent downward departure from the low end of the Guidelines range, to be followed by five years of supervised release. The Government appealed Pepper’s sentence, and in June 2005, the Court of Appeals for the Eighth Circuit reversed and remanded for resentencing in light of our intervening decision in Booker (and for another reason not relevant here). See United States v. Pepper, 412 F. 3d 995, 999 (2005) (Pepper I). Pepper completed his 24-month sentence three days after Pepper I was issued and began serving his term of supervised release.

   In May 2006, the District Court conducted a resentencing hearing and heard from three witnesses. In his testimony, Pepper first recounted that while he had previously been a drug addict, he successfully completed a 500-hour drug treatment program while in prison and he no longer used any drugs. App. 104–105. Pepper then explained that since his release from prison, he had enrolled at a local community college as a full-time student and had earned A’s in all of his classes in the prior semester. Id., at 106–107. Pepper also testified that he had obtained employment within a few weeks after being released from custody and was continuing to work part-time while attending school. Id., at 106–110. Pepper confirmed that he was in compliance with all the conditions of his supervised release and described his changed attitude since his arrest. See id., at 111 (“[M]y life was basically headed to either where—I guess where I ended up, in prison, or death. Now I have some optimism about my life, about what I can do with my life. I’m glad that I got this chance to try again I guess you could say at a decent life… . My life was going nowhere before, and I think it’s going somewhere now”).

   Pepper’s father testified that he had virtually no contact with Pepper during the 5-year period leading up to his arrest. Id., at 117. Pepper’s drug treatment program, according to his father, “truly sobered him up” and “made his way of thinking change.” Id., at 121. He explained that Pepper was now “much more mature” and “serious in terms of planning for the future,” id., at 119, and that as a consequence, he had re-established a relationship with his son, id., at 118–119.

   Finally, Pepper’s probation officer testified that, in his view, a 24-month sentence would be reasonable in light of Pepper’s substantial assistance, postsentencing rehabilitation, and demonstrated low risk of recidivism. Id., at 126–131. The probation officer also prepared a sentencing memorandum that further set forth the reasons supporting his recommendation for a 24-month sentence.

   The District Court adopted as its findings of fact the testimony of the three witnesses and the probation officer’s sentencing memorandum. The court granted a 40 percent downward departure based on Pepper’s substantial assistance, reducing the bottom of the Guidelines range from 97 to 58 months. The court then granted a further 59 percent downward variance based on, inter alia, Pepper’s rehabilitation since his initial sentencing. Id., at 143–148.[Footnote 3] The court sentenced Pepper to 24 months of imprisonment, concluding that “it would [not] advance any purpose of federal sentencing policy or any other policy behind the federal sentencing guidelines to send this defendant back to prison.” Id., at 149–150.

   The Government again appealed Pepper’s sentence, and the Court of Appeals again reversed and remanded for resentencing. See United States v. Pepper, 486 F. 3d 408, 410, 413 (CA8 2007) (Pepper II). The court concluded that, while it was “a close call, [it could not] say the district court abused its discretion” by granting the 40 percent downward departure for substantial assistance. Id., at 411. The court found the further 59 percent downward variance, however, to be an abuse of discretion. Id., at 412–413. In doing so, the court held that Pepper’s “post-sentencing rehabilitation was an impermissible factor to consider in granting a downward variance.” Id., at 413. The court stated that evidence of postsentencing reha-bilitation “ ‘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,’ ” and permitting courts to consider post-sentencing rehabilitation at resentencing “would create unwarranted sentencing disparities and inject blatant inequities into the sentencing process.” Ibid.[Footnote 4] The Court of Appeals directed that the case be assigned to a different district judge for resentencing. Ibid.

   After the Court of Appeals’ mandate issued, Pepper’s case was reassigned on remand to Chief Judge Linda R. Reade. In July 2007, Chief Judge Reade issued an order on the scope of the remand from Pepper II, stating that “[t]he court will not consider itself bound to reduce [Pepper’s] advisory Sentencing Guidelines range by 40% pursuant to USSG §5K1.1.” United States v. Pepper, No. 03–CR–4113–LRR, 2007 WL 2076041, *4 (ND Iowa 2007). In the meantime, Pepper petitioned this Court for a writ of certiorari, and in January 2008, we granted the petition, vacated the judgment in Pepper II, and remanded the case to the Court of Appeals for further consideration in light of Gall v. United States, 552 U. S. 38 (2007). See Pepper v. United States, 552 U. S. 1089 (2008).

   On remand, the Court of Appeals held that Gall did not alter its prior conclusion that “post-sentence rehabilitation is an impermissible factor to consider in granting a downward variance.” 518 F. 3d 949, 953 (CA8 2008) (Pepper III). The court again reversed the sentence and remanded for resentencing.

   In October 2008, Chief Judge Reade convened Pepper’s second resentencing hearing. Pepper informed the court that he was still attending school and was now working as a supervisor for the night crew at a warehouse retailer, where he was recently selected by management as “associate of the year” and was likely to be promoted the following January. App. 320, 323. Pepper also stated that he had recently married and was now supporting his wife and her daughter. Id., at 321. Pepper’s father reiterated that Pepper was moving forward in both his career and his family life and that he remained in close touch with his son. See id., at 300–304.

   In December 2008, Chief Judge Reade issued a sentencing memorandum. Noting that the remand language of Pepper III was nearly identical to the language in Pepper II, the court again observed that it was “not bound to reduce [Pepper’s] advisory Sentencing Guidelines range by 40%” for substantial assistance and concluded that Pepper was entitled only to a 20 percent downward departure because the assistance was “timely, helpful and important” but “in no way extraordinary.” Sealed Sentencing Memorandum in No. 03–CR–4113–LRR (ND Iowa), Doc. 198, pp. 7, 10. The court also rejected Pepper’s request for a downward variance based on, inter alia, his postsentencing rehabilitation. Id., at 16.

   The District Court reconvened Pepper’s resentencing hearing in January 2009. The court’s decision to grant a 20 percent downward departure for substantial assistance resulted in an advisory Guidelines range of 77 to 97 months. The court also granted the Government’s motion under Rule 35(b) of the Federal Rules of Criminal Procedure to account for investigative assistance Pepper provided after he was initially sentenced. The court imposed a 65-month term of imprisonment, to be followed by 12 months of supervised release.[Footnote 5]

   The Court of Appeals affirmed Pepper’s 65-month sentence. 570 F. 3d 958 (CA8 2009) (Pepper IV). As relevant here, the Court of Appeals rejected Pepper’s argument that the District Court erred in refusing to consider his postsentencing rehabilitation. The court acknowledged that “Pepper made significant progress during and following his initial period of imprisonment” and “commend[ed] Pepper on the positive changes he has made in his life,” but concluded that Pepper’s argument was foreclosed by Circuit precedent holding that “post-sentencing rehabilitation is not a permissible factor to consider in granting a downward variance.” Id., at 964–965 (citing United States v. Jenners, 473 F. 3d 894, 899 (CA8 2007); United States v. McMannus, 496 F. 3d 846, 852, n. 4 (CA8 2007)).

   The Court of Appeals also rejected Pepper’s claim that the scope of the remand and the law of the case from Pepper II and Pepper III required the District Court to reduce the applicable Guidelines range by at least 40 percent pursuant to USSG §5K1.1. The court noted that its remand orders in Pepper II and Pepper III were “general remand[s] for resentencing,” which “did not place any limitations on the discretion of the newly assigned district court judge in resentencing.” 570 F. 3d, at 963. The court further noted that, although issues decided by an appellate court become law of the case on remand to the sentencing court, its earlier decisions merely held that a 40 percent downward departure for substantial assistance was not an abuse of discretion, not that the district court would be bound by the 40 percent departure previously granted. Id., at 963–964.

   We granted Pepper’s petition for a writ of certiorari, 561 U. S. ___ (2010), to decide two questions: (1) whether a district court, after a defendant’s sentence has been set aside on appeal, may consider evidence of a defendant’s postsentencing rehabilitation to support a downward variance when resentencing the defendant, a question that has divided the Courts of Appeals;[Footnote 6] and (2) whether the resentencing court was required, under the law of the case doctrine, to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at Pepper’s prior sentencing. Because the United States has confessed error in the Court of Appeals’ ruling on the first question, we appointed an amicus curiae to defend the Court of Appeals’ judgment.[Footnote 7] We now vacate the Eighth Circuit’s ruling on the first question and affirm its ruling on the second.

II

A

   “It has been uniform and constant in the federal judicial tradition for the sentencing judge to consider every convicted person as an individual and every case as a unique study in the human failings that sometimes mitigate, sometimes magnify, the crime and the punishment to ensue.” Koon v. United States, 518 U. S. 81, 113 (1996). Underlying this tradition is the principle that “the punishment should fit the offender and not merely the crime.” Williams, 337 U. S., at 247; see also Pennsylvania ex rel. Sullivan v. Ashe, 302 U. S. 51, 55 (1937) (“For the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender”).

   Consistent with this principle, we have observed that “both before and since the American colonies became a nation, courts in this country and in England practiced a 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.” Williams, 337 U. S., at 246. In particular, we have emphasized that “[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Id., at 247. Permitting sentencing courts to consider the widest possible breadth of information about a defendant “ensures that the punishment will suit not merely the offense but the individual defendant.” Wasman v. United States, 468 U. S. 559, 564 (1984).

   In 1970, Congress codified the “longstanding principle that sentencing courts have broad discretion to consider various kinds of information” at 18 U. S. C. §3577 (1970 ed.). United States v. Watts, 519 U. S. 148, 151 (1997) (per curiam). Section 3577 (1970 ed.) provided:

“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.” (Emphasis added.)

In the Sentencing Reform Act of 1984 (SRA), 18 U. S. C. §3551 et seq., Congress effected fundamental changes to federal sentencing by creating the Federal Sentencing Commission and introducing the Guidelines scheme. In doing so, however, Congress recodified §3577 without change at §3661. The Sentencing Commission, moreover, expressly incorporated §3661 in the Guidelines:

“In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character and conduct of the defendant, unless otherwise prohibited by law. See 18 U. S. C. §3661.” USSG §1B1.4 (2010) (emphasis added).

Both Congress and the Sentencing Commission thus expressly preserved the traditional discretion of sentencing courts to “conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come.” United States v. Tucker, 404 U. S. 443, 446 (1972).[Footnote 8]

   The SRA did constrain sentencing courts’ discretion in important respects, most notably by making the Guidelines mandatory, see 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV), and by specifying various factors that courts must consider in exercising their discretion, see §3553(a). In our seminal decision in Booker, we held that where facts found by a judge by a preponderance of the evidence increased the applicable Guidelines range, treating the Guidelines as mandatory in those circumstances violated the Sixth Amendment right of criminal defendants to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. 543 U. S., at 243–244. Our remedial opinion in Booker invalidated two offending provisions in the SRA, see id., at 245 (invalidating 18 U. S. C. §§3553(b)(1), 3742(e)), and instructed the district courts to treat the Guidelines as “effectively advisory,” 543 U. S., at 245.

   Our post-Booker opinions make clear that, although a sentencing court must “give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well.” Kimbrough v. United States, 552 U. S. 85, 101 (2007) (internal quotation marks and citation omitted). Accordingly, although the “Guidelines should be the starting point and the initial benchmark,” district courts may impose sentences within statutory limits based on appropriate consideration of all of the factors listed in §3553(a), subject to appellate review for “reasonableness.” Gall, 552 U. S., at 49–51. This sentencing framework applies both at a defendant’s initial sentencing and at any subsequent resentencing after a sentence has been set aside on appeal. See 18 U. S. C. §3742(g) (“A district court to which a case is remanded … shall resentence a defendant in accordance with section 3553”); see also Dillon v. United States, 560 U. S. ___, ___ (2010) (slip op., at 10) (distinguishing between “sentence-modification proceedings” under 18 U. S. C. §3582(c)(2), which “do not implicate the interests identified in Booker,” and “plenary resentencing proceedings,” which do).

B

   In light of the federal sentencing framework described above, we think it clear that when a defendant’s sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant’s rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.

   Preliminarily, Congress could not have been clearer in directing that “[n]o limitation … be placed on the information concerning the background, character, and conduct” of a defendant that a district court may “receive and consider for the purpose of imposing an appropriate sentence.” 18 U. S. C. §3661. The plain language of §3661 makes no distinction between a defendant’s initial sentencing and a subsequent resentencing after a prior sentence has been set aside on appeal. We have recognized that “the broad language of §3661” does not provide “any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing.” Watts, 519 U. S., at 152. A categorical bar on the consideration of postsentencing rehabilitation evidence would directly contravene Congress’ expressed intent in §3661.

   In addition, evidence of postsentencing rehabilitation may be highly relevant to several of the §3553(a) factors that Congress has expressly instructed district courts to consider at sentencing. For example, evidence of postsentencing rehabilitation may plainly be relevant to “the history and characteristics of the defendant.” §3553(a)(1). Such evidence may also be pertinent to “the need for the sentence imposed” to serve the general purposes of sentencing set forth in §3553(a)(2)—in particular, to “afford adequate deterrence to criminal conduct,” “protect the public from further crimes of the defendant,” and “provide the defendant with needed educational or vocational training … or other correctional treatment in the most ef-fective manner.” §§3553(a)(2)(B)–(D); see McMannus, 496 F. 3d, at 853 (Melloy, J., concurring) (“In assessing … deterrence, protection of the public, and rehabilitation, 18 U. S. C. §3553(a)(2)(B)(C) & (D), there would seem to be no better evidence than a defendant’s post-incarceration conduct”). Postsentencing rehabilitation may also critically inform a sentencing judge’s overarching duty under §3553(a) to “impose a sentence sufficient, but not greater than necessary” to comply with the sentencing purposes set forth in §3553(a)(2).

   As the original sentencing judge recognized, the extensive evidence of Pepper’s rehabilitation since his initial sentencing is clearly relevant to the selection of an appropriate sentence in this case. Most fundamentally, evidence of Pepper’s conduct since his release from custody in June 2005 provides the most up-to-date picture of Pepper’s “history and characteristics.” §3553(a)(1); see United States v. Bryson, 229 F. 3d 425, 426 (CA2 2000) (“[A] court’s duty is always to sentence the defendant as he stands before the court on the day of sentencing”). At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addict who was unemployed, estranged from his family, and had recently sold drugs as part of a methamphetamine conspiracy. By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had re-established a relationship with his father, and was married and supporting his wife’s daughter. There is no question that this evidence of Pepper’s conduct since his initial sentencing constitutes a critical part of the “history and characteristics” of a defendant that Congress intended sentencing courts to consider. §3553(a).

   Pepper’s postsentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence. See §§3553(a)(2)(B)–(C); Gall, 552 U. S., at 59 (“Gall’s self-motivated rehabilitation … lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts” (citing §§3553(a)(2)(B)–(C))). As recognized by Pepper’s probation officer, Pepper’s steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for “educational or vocation- al training … or other correctional treatment.” §3553(a)(2)(D). Finally, Pepper’s exemplary postsentencing conduct may be taken as the most accurate indicator of “his present purposes and tendencies and significantly to suggest the period of restraint and the kind of discipline that ought to be imposed upon him.” Ashe, 302 U. S., at 55. Accordingly, evidence of Pepper’s postsentencing rehabilitation bears directly on the District Court’s overarching duty to “impose a sentence sufficient, but not greater than necessary” to serve the purposes of sentencing. §3553(a).

   In sum, the Court of Appeals’ ruling prohibiting the District Court from considering any evidence of Pepper’s postsentencing rehabilitation at resentencing conflicts with longstanding principles of federal sentencing law and contravenes Congress’ directives in §§3661 and 3553(a).

C

   Amicus nevertheless advances two principal arguments in defense of the Court of Appeals’ ruling: (1) 18 U. S. C. §3742(g)(2), which restricts the discretion of a resentencing court on remand to impose a non-Guidelines sentence, effectively forecloses consideration of a defendant’s postsentencing rehabilitation; and (2) permitting district courts to consider postsentencing rehabilitation would defeat Congress’ objectives under §3553(a). We are not persuaded.

1

   Amicus’ main argument relies on 18 U. S. C. §3742(g)(2), a provision that the Court of Appeals did not cite below. That provision states that when a sentence is set aside on appeal, the district court to which the case is remanded:

“shall not impose a sentence outside the applicable guidelines range except upon a ground that—

   “(A) was specifically and affirmatively included in the written statement of reasons required by section 3553(c) in connection with the previous sentencing of the defendant prior to the appeal; and

   “(B) was held by the court of appeals, in remanding the case, to be a permissible ground of departure.”

In operation, §3742(g)(2) restricts the discretion of a district court on remand by precluding the court from imposing a sentence outside the Guidelines range except upon a “ground of departure” that was expressly relied upon in the prior sentencing and upheld on appeal. Amicus thus correctly contends that, on its face, §3742(g)(2) effectively forecloses a resentencing court from considering evidence of a defendant’s postsentencing rehabilitation for purposes of imposing a non-Guidelines sentence because, as a practical matter, such evidence did not exist at the time of the prior sentencing. As the Government concedes, however, §3742(g)(2) is invalid after Booker.

   As we have explained, Booker held that where judicial factfinding increases a defendant’s applicable Sentencing Guidelines range, treating the Guidelines as mandatory in those circumstances would violate the defendant’s Sixth Amendment right to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. See supra, at 11. We recognized in Booker that, although the SRA permitted departures from the applicable Guidelines range in limited circumstances,[Footnote 9] “departures are not available in every case, and in fact are unavailable in most.” 543 U. S., at 234. Because in those instances, “the judge is bound to impose a sentence within the Guidelines range,” we concluded that the availability of departures in certain circumstances “does not avoid the constitutional issue.” Ibid.

   To remedy the constitutional problem, we rendered the Guidelines effectively advisory by invalidating two provisions of the SRA: 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV), which generally required sentencing courts to impose a sentence within the applicable Guidelines range, and §3742(e) (2000 ed. and Supp. IV), which prescribed the standard of appellate review, including de novo review of Guidelines departures. 543 U. S., at 259. We invalidated these provisions even though we recognized that mandatory application of the Guidelines would not always result in a Sixth Amendment violation.[Footnote 10] Indeed, although the Government suggested in Booker that we render the Guidelines advisory only in cases in which the Constitution prohibits judicial factfinding, we rejected that two-track proposal, reasoning that “Congress would not have authorized a mandatory system in some cases and a non-mandatory system in others, given the administrative complexities that such a system would create.” Id., at 266; see Dillon, 560 U. S., at ___ (slip op., at 12) (“The incomplete remedy we rejected in Booker would have required courts to treat the Guidelines differently in similar proceedings, leading potentially to unfair results and considerable administrative challenges”).

   We did not expressly mention §3742(g)(2) in Booker,[Footnote 11] but the rationale we set forth in that opinion for invalidating §§3553(b)(1) and 3742(e) applies equally to §3742(g)(2). As with those provisions, §3742(g)(2) requires district courts effectively to treat the Guidelines as mandatory in an entire set of cases. Specifically, §3742(g)(2) precludes a district court on remand from imposing a sentence “outside the applicable guidelines range” except upon a “ground of departure” that was expressly relied upon by the court at the prior sentencing and upheld by the court of appeals. In circumstances in which the district court did not rely upon such a departure ground at the prior sentencing, §3742(g)(2) would require the court on remand to impose a sentence within the applicable Guidelines range, thus rendering the Guidelines effectively mandatory. Because in a large set of cases, judicial factfinding will increase the applicable Guidelines range beyond that supported solely by the facts established by the jury verdict (or guilty plea), requiring a sentencing judge on remand to apply the Guidelines range, as §3742(g)(2) does, will often result in a Sixth Amendment violation for the reasons we explained in Booker. Accordingly, as with the provisions in Booker, the proper remedy here is to invalidate §3742(g)(2).

   The sentencing proceeding at issue in Booker itself illustrates why §3742(g)(2) cannot withstand Sixth Amendment scrutiny. The district court in Booker increased the defendant’s then-mandatory Guidelines range based on a drug-quantity finding that it, rather than the jury, made. 543 U. S., at 227. After we held that the Guidelines must be treated as advisory, we remanded the case for resentencing. Id., at 267. Had §3742(g)(2) remained valid after Booker, the district court on remand would have been required to sentence within the Guidelines range because it did not depart from the Guidelines at the original sentencing. Accordingly, the resentencing judge in Booker would have been required under §3742(g)(2) to impose a Guidelines sentence based on judge-found facts concerning drug quantity, the precise result that Booker forbids.

   The same result would occur in any sentencing in which a district court erroneously refuses to impose a sentence outside the Guidelines range “based on a misunderstanding of its authority to depart under or vary from the Guidelines.” Reply Brief for United States 16. For example, if §3742(g)(2) remained valid, there would be no remedy at resentencing if a district court erroneously believed the Guidelines were presumptively reasonable, see Nelson v. United States, 555 U. S. ___, ___ (2009) (per curiam) (slip op., at 2), or if it mistakenly thought that a non-Guidelines sentence required extraordinary circumstances, see Gall, 552 U. S., at 47, or if it incorrectly concluded that it could not vary from the Guidelines based on a policy disagreement with their disparate treatment of crack and powder cocaine, see Kimbrough, 552 U. S., at 101. In such cases, the district court at the initial sentencing proceeding will necessarily have imposed a sentence within the Guidelines range, and thus §3742(g)(2) would require the imposition of a Guidelines sentence on remand. See Reply Brief for Petitioner 3–5 (describing further categories of cases where “the Booker remedy would be entirely unavailable if §3742(g)(2) were valid”).

   To be sure, applying §3742(g)(2) at resentencing would not always result in a Sixth Amendment violation. For example, where the applicable Guidelines range rests solely on facts found by a jury beyond a reasonable doubt, application of §3742(g)(2) at resentencing would not render the sentence constitutionally infirm. But, as explained above, that possibility was equally true with respect to the sentencing provisions we invalidated in Booker. See supra, at 16. As with those provisions, “we cannot assume that Congress, if faced with the statute’s invalidity in key applications, would have preferred to apply the statute in as many other instances as possible.” 543 U. S., at 248. Just as we rejected a two-track system in Booker that would have made the Guidelines mandatory in some cases and advisory in others, we reject a partial invalidation of §3742(g)(2) that would leave us with the same result.

   The fact that §3742(g)(2) permits a resentencing court on remand to impose a non-Guidelines sentence in cases where the prior sentence expressly relied upon a departure upheld by the court of appeals also does not cure the constitutional infirmity. As explained above, we observed in Booker that the availability of departures from the applicable Guidelines ranges in specified circumstances “does not avoid the constitutional issue.” Id., at 234. Because “departures are not available in every case, and in fact are unavailable in most,” ibid., we held that remedying the Sixth Amendment problem required invalidation of §3553(b)(1). That same remedial approach requires us to invalidate §3742(g)(2).[Footnote 12]

   Amicus contends that any constitutional infirmity in §3742(g)(2) can be remedied by invalidating §3742(j)(1)(B) rather than §3742(g)(2). Brief for Amicus Curiae in Support of Judgment Below 21–22. Section 3742(j)(1)(B) provides that a “ground of departure” is “permissible” for purposes of §3742(g)(2)(B) only if it is, inter alia, “authorized under section 3553(b).” In Booker, we noted that “statutory cross-references” to the SRA provisions we invalidated were also constitutionally infirm. 543 U. S., at 259. Because §3742(j)(1)(B) incorporates a cross-reference to §3553(b)(1), one of the provisions we invalidated in Booker, amicus suggests that invalidating §3742(j)(1)(B) would cure any constitutional defect in §3742(g)(2)(B). As the Government explains, however, even if §3742(j)(1)(B) were invalidated and a district court could depart on any ground at an initial sentencing, the district court would not be able to depart on any new ground at resentencing so long as §3742(g)(2) remains in force. Because amicus’ proposed solution would still result in the Guidelines being effectively mandatory at resentencing in an entire set of cases, it fails to remedy the fundamental constitutional defect of §3742(g)(2).

2

   Amicus’ next cluster of arguments focuses on Con- gress’ sentencing objectives under §3553(a). Preliminarily, amicus contends that even if §3742(g)(2) is constitutionally invalid, that provision reflects a congressional policy determination that only information available at the time of original sentencing should be considered, and that this policy determination should inform our analysis of whether §3553(a) permits consideration of postsentencing rehabilitation evidence. This argument, however, is based on a faulty premise.

   Contrary to amicus’ contention, §3742(g)(2) does not reflect a congressional purpose to preclude consideration of evidence of postsentencing rehabilitation at resentencing. To be sure, §3742(g)(2) has the incidental effect of limiting the weight a sentencing court may place on postsentencing rehabilitation by precluding the court from resentencing outside the Guidelines range on a “ground of departure” on which it did not previously rely. But on its face, nothing in §3742(g)(2) prohibits a district court from considering postsentencing developments—including postsentencing rehabilitation—in selecting a sentence within the applicable Guidelines range. Section 3742(g)(2) also does not apply to resentencings that occur for reasons other than when a sentence is overturned on appeal and the case is remanded (e.g., when a sentence is set aside on collateral review under 28 U. S. C. §2255). In such circumstances, §3742(g)(2) does not restrict a district court at all, much less with respect to consideration of postsentencing developments. Accordingly, because we see no general congressional policy reflected in §3742(g)(2) to preclude resentencing courts from considering postsentencing information,[Footnote 13] that provision has no bearing on our analysis of whether §3553(a) permits consideration of evidence of postsentencing rehabilitation.

   As we explained above, evidence of postsentencing rehabilitation may be highly relevant to several of the sentencing factors that Congress has specifically instructed district courts to consider. See supra, at 13–15 (discussing §§3553(a), (a)(1), (a)(2)(B)–(D)). Amicus, however, argues that consideration of postsentencing reha-bilitation is inconsistent with two sentencing factors: §3553(a)(5), which directs sentencing courts to consider “any pertinent policy statement” of the Sentencing Commission, and §3553(a)(6), which requires courts to consider “the need to avoid unwarranted sentenc[ing] disparities among defendants with similar records who have been found guilty of similar conduct.”

   With regard to §3553(a)(5), amicus points to the Sentencing Commission’s policy statement in USSG §5K2.19, which provides that “[p]ost-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense[,] are not an appropriate basis for a downward departure when resentencing the defendant for that offense.” According to amicus, that policy statement is “clear and unequivocal,” and as an exercise of the Sentencing Commission’s “core function,” should be given effect. Brief for Amicus Curiae in Support of Judgment Below 31–32.

   To be sure, we have recognized that the Commission post-Booker continues to “fil[l] an important institutional role” because “[i]t has the capacity courts lack to base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise.” Kimbrough, 552 U. S., at 109 (internal quotation marks omitted). Accordingly, we have instructed that district courts must still give “respectful consideration” to the now-advisory Guidelines (and their accompanying policy statements). Id., at 101. As amicus acknowledges, however, our post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission’s views. See id., at 109–110. That is particularly true where, as here, the Commission’s views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.

   The commentary to USSG §5K2.19 expresses the Commission’s view that departures based on postsentencing rehabilitation would “(1) be inconsistent with the policies established by Congress under 18 U. S. C. §3624(b) [governing good time credit] and other statutory provisions for reducing the time to be served by an imprisoned person; and (2) inequitably benefit only those who gain the opportunity to be resentenced de novo.” With regard to the first proffered rationale, a sentencing reduction based on postsentencing rehabilitation can hardly be said to be “inconsistent with the policies” underlying an award of good time credit under §3624(b) because the two serve distinctly different penological interests.[Footnote 14] Indeed, the difference between the two is reflected most obviously in the fact that the BOP has no authority to award good time credit where, as in this case, the defendant’s good behavior occurs after a sentence has already been served.[Footnote 15] The Commission’s second proffered rationale fares no better. To be sure, allowing district courts to consider evidence of postsentencing rehabilitation may result in disparate treatment between those defendants who are sentenced properly and those who must be resentenced. But that disparity arises not because of arbitrary or random sentencing practices, but because of the ordinary operation of appellate sentencing review.

   In a closely related vein, amicus argues that consideration of postsentencing rehabilitation is inconsistent with §3553(a)(6), which requires sentencing courts to consider the need to avoid unwarranted sentencing disparities. The Court of Appeals also rested its holding on this ground, reasoning that “ ‘allowing [postsentencing rehabilitation] evidence to influence [defendant’s] sentence would be grossly unfair to the vast majority of defendants who receive no sentencing-court review of any positive post-sentencing rehabilitative efforts.’ ” 570 F. 3d, at 965 (quoting McMannus, 496 F. 3d, at 852, n. 4). But amicus points to no evidence, nor are we aware of any, suggesting that Congress enacted §3553(a)(6) out of a concern with disparities resulting from the normal trial and sentencing process.[Footnote 16] The differences in procedural opportunity that may result because some defendants are inevitably sentenced in error and must be resentenced are not the kinds of “unwarranted” sentencing disparities that Congress sought to eliminate under §3553(a)(6). Cf. United States v. LaBonte, 520 U. S. 751, 761–762 (1997) (disparity arising from exercise of prosecutorial discretion not unwarranted); United States v. Rhodes, 145 F. 3d 1375, 1381 (CADC 1998) (“Distinguishing between prisoners whose convictions are reversed on appeal and all other prisoners hardly seems ‘unwarranted’ ”).

   As the Government explains, moreover, the logic of the Court of Appeals’ approach below—i.e., that “post-sentence rehabilitation is not relevant . . . because the district court could not have considered that evidence at the time of the original sentencing,” 570 F. 3d, at 965 (internal quotation marks omitted)—would require sentencing courts categorically to ignore not only postsentencing rehabilitation, but any postsentencing information, including, for example, evidence that a defendant had committed postsentencing offenses. Our precedents, however, provide no basis to support such a categorical bar. See, e.g., Wasman, 468 U. S., at 572 (“[A] sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings”); cf. North Carolina v. Pearce, 395 U. S. 711, 723 (1969). Indeed, even the Court of Appeals below does not accept the logical consequence of its approach as it permits district courts to consider postsentencing conduct that would support a higher sentence. See United States v. Stapleton, 316 F. 3d 754, 757 (CA8 2003). Nothing in §§3553(a) and 3661, however, remotely suggests that Congress intended district courts to consider only postsentencing evidence detrimental to a defendant while turning a blind eye to favorable evidence of a defendant’s postsentencing rehabilitation. Cf. United States v. Jones, 460 F. 3d 191, 196 (CA2 2006) (“Obviously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up”).

   Finally, we note that §§3553(a)(5) and (a)(6) describe only two of the seven sentencing factors that courts must consider in imposing sentence. At root, amicus effectively invites us to elevate two §3553(a) factors above all others. We reject that invitation. See Gall, 552 U. S., at 49–50 (instructing sentencing courts to “consider all of the §3553(a) factors” (emphasis added)).

D

   For the reasons stated above, we hold that the Court of Appeals erred in categorically precluding the District Court from considering evidence of Pepper’s postsentencing rehabilitation after his initial sentence was set aside on appeal. District courts post-Booker may consider evidence of a defendant’s postsentencing rehabilitation at resentencing and such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.[Footnote 17]

   The Government informs us that, in granting Pepper’s motion for release pending disposition of this appeal, see n. 5, supra, the District Court stated that it would not have exercised its discretion to grant Pepper a downward variance based on postsentencing rehabilitation. That statement, however, was made in light of the Court of Appeals’ erroneous views regarding postsentencing rehabilitation evidence. Because we expressly reject those views today, it is unclear from the record whether the District Court would have imposed the same sentence had it properly considered the extensive evidence of Pepper’s postsentencing rehabilitation. On remand, the District Court should consider and give appropriate weight to that evidence, as well as any additional evidence concerning Pepper’s conduct since his last sentencing in January 2009. Accordingly, we vacate the Eighth Circuit’s judgment in respect to Pepper’s sentence and remand the case for resentencing consistent with this opinion.

III

   The second question presented in this case merits only a brief discussion. As noted above, the original sentencing judge in this case granted Pepper a 40 percent downward departure pursuant to USSG §5K1.1 based on Pepper’s substantial assistance and sentenced him to 24 months’ imprisonment. When the Court of Appeals vacated that sentence in Pepper II, and again in Pepper III, the case was reassigned on remand to Chief Judge Reade. In resentencing Pepper, Chief Judge Reade ruled that she was not bound by the prior sentencing judge’s decision to grant a 40 percent downward departure and instead granted only a 20 percent downward departure, which the Court of Appeals upheld in Pepper IV. Pepper argues that the law of the case doctrine required Chief Judge Reade to apply the same 40 percent departure granted by the original sentencing judge. We disagree.

   Preliminarily, we note that the mandates in Pepper II and Pepper III were “general remand[s] for resentencing,” which “did not place any limitations on the discretion of the newly assigned district court judge in resentencing Pepper.” 570 F. 3d, at 963. 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.[Footnote 18] The only question before us is whether the law of the case doctrine required Chief Judge Reade to adhere to the original sentencing judge’s decision granting a 40 percent downward departure.

   Although we have described the “law of the case [a]s an amorphous concept,” “[a]s most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U. S. 605, 618 (1983). This doctrine “directs a court’s discretion, it does not limit the tribunal’s power.” Ibid. Accordingly, the doctrine “does not apply if the court is ‘convinced that [its prior decision] is clearly erroneous and would work a manifest injustice.’ ” Agostini v. Felton, 521 U. S. 203, 236 (1997) (quoting Arizona, 460 U. S., at 618, n. 8; alteration in original).

   Pepper argues that, because the original sentencing judge’s decision to grant the 40 percent departure was never set aside by the Court of Appeals or this Court, it constituted the law of the case. As such, Pepper contends that Chief Judge Reade should not have disturbed that ruling absent “compelling justification” for overturning it. Brief for Petitioner 56. According to Pepper, because Chief Judge Reade identified no such justification, the law of the case doctrine required her to adhere to the 40 percent departure granted by the original sentencing judge.

   As the Government explains, however, the Court of Appeals in Pepper III set aside Pepper’s entire sentence and remanded for a de novo resentencing. See 518 F. 3d, at 949, 953. Thus, even assuming, arguendo, that the original sentencing court’s decision to impose a 40 percent departure was at one point law of the case, Pepper III effectively wiped the slate clean. To be sure, Pepper III vacated Pepper’s 24-month sentence on grounds unrelated to the substantial assistance departure, but that fact does not affect our conclusion. “A criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent.” United States v. Stinson, 97 F. 3d 466, 469 (CA11 1996) (per curiam). Because a district court’s “original sentencing intent may be undermined by altering one portion of the calculus,” United States v. White, 406 F. 3d 827, 832 (CA7 2005), an appellate court when reversing one part of a defendant’s sentence “may vacate the entire sentence … so that, on remand, the trial court can reconfigure the sentencing plan … to satisfy the sentencing factors in 18 U. S. C. §3553(a),” Greenlaw v. United States, 554 U. S. 237, 253 (2008). That is precisely what the Eighth Circuit did here.

   Accordingly, because the Court of Appeals in Pepper III remanded for de novo resentencing, we conclude that Chief Judge Reade was not bound by the law of the case doctrine to apply the same 40 percent departure that had been applied at Pepper’s prior sentencing.

*  *  *

   For the reasons stated above, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated in part and affirmed in part, and the case is remanded for resentencing consistent with this opinion.

It is so ordered.

Justice Kagan took no part in the consideration or decision of this case.

Footnote 1

 Although the charge to which Pepper pleaded guilty carried a mandatory minimum of 120 months’ imprisonment, the mandatory minimum did not apply because he was eligible for safety-valve relief pursuant to 18 U. S. C. §3553(f) (2000 ed.) and §5C1.2 of the United States Sentencing Guidelines Manual (Nov. 2003) (USSG).

Footnote 2

 USSG §5K1.1 provides that a court may depart from the Guidelines “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” Pepper provided information to Government investigators and a grand jury concerning two other individuals involved with illegal drugs and guns.

Footnote 3

 The court also cited Pepper’s lack of a violent history and, to a lesser extent, the need to avoid unwarranted sentencing disparity with Pepper’s co-conspirators. App. 144–145.

Footnote 4

 The Court of Appeals also held that the District Court “further erred by considering Pepper’s lack of violent history, which history had already been accounted for in the sentencing Guidelines calculation, and by considering sentencing disparity among Pepper’s co-defendants without adequate foundation and explanation.” Pepper II, 486 F. 3d, at 413.

Footnote 5

 After the District Court resentenced Pepper to 65 months’ imprisonment, Pepper was returned to federal custody. On July 22, 2010, after we granted Pepper’s petition for a writ of certiorari, the District Court granted his motion for release pending disposition of the case here.

Footnote 6

 Compare, e.g., United States v. Lorenzo, 471 F. 3d 1219, 1221 (CA11 2006) (per curiam) (precluding consideration of postsentencing rehabilitative conduct); United States v. Sims, 174 F. 3d 911, 913 (CA8 1999) (same), with United States v. Lloyd, 469 F. 3d 319, 325 (CA3 2006) (permitting consideration of postsentencing rehabilitation in exceptional cases); United States v. Hughes, 401 F. 3d 540, 560, n. 19 (CA4 2005) (instructing district court to adjust Guidelines calculation on remand “if new circumstances have arisen or events occurred since [defendant] was sentenced that impact the range prescribed by the guidelines”).

Footnote 7

 We appointed Adam G. Ciongoli to brief and argue the case, as amicus curiae, in support of the Court of Appeals’ judgment. 561 U. S. ___ (2010). Mr. Ciongoli has ably discharged his assigned responsibilities.

Footnote 8

 Of course, sentencing courts’ discretion under §3661 is subject to constitutional constraints. See, e.g., United States v. Leung, 40 F. 3d 577, 586 (CA2 1994) (“A defendant’s race or nationality may play no adverse role in the administration of justice, including at sentencing”).

Footnote 9

 See 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV) (permitting departures where the judge “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission”).

Footnote 10

 For example, in the pre-Booker regime, if the applicable Guidelines range depended solely on facts found by a jury beyond a reasonable doubt, requiring a judge to sentence within that range would not run afoul of the Sixth Amendment.

Footnote 11

 See Dillon, 560 U. S., at ___, n. 5 (Stevens, J., dissenting) (slip op., at 9, n. 5) (citing §3742(g)(2) as “one additional provision of the [SRA that] should have been excised, but was not, in order to accomplish the Court’s remedy”).

Footnote 12

 Amicus National Association of Criminal Defense Lawyers (NACDL) argues that, because §3742(g)(2)(B) permits a non-Guidelines sentence only with respect to certain “departures,” that provision “appears to preclude sentencing courts on remand from granting any and all variances under Section 3553(a).” Brief for NACDL as Amicus Curiae 11 (emphasis added). In Irizarry v. United States, 553 U. S. 708 (2008), we held that a “ ‘[d]eparture’ is a term of art under the Guidelines and refers only to non-Guidelines sentences imposed under the framework set out in the Guidelines”; in contrast, a “variance” refers to a non-Guidelines sentence outside the Guidelines framework. Id., at 714. Irizarry’s holding construed the term “departure” in Rule 32(h) of the Federal Rules of Criminal Procedure. Because we conclude that §3742(g)(2) is constitutionally infirm and must be invalidated, we need not decide whether its reference to “departure[s]” includes variances.

Footnote 13

 For those of us for whom it is relevant, the legislative history of §3742(g)(2) confirms that the provision, enacted as part of the PROTECT Act of 2003, §401(e), 117 Stat. 671, was not aimed at prohibiting district courts from considering postsentencing developments. Rather, it was meant to ensure that under the then-mandatory Guidelines system, when a particular departure was reversed on appeal, the district court could not impose the same sentence on remand on the basis of a different departure. See H. R. Conf. Rep. No. 108–66, pp. 58–59 (2003) (noting that §401 of the PROTECT Act, inter alia, “prevent[s] sentencing courts, upon remand, from imposing the same illegal departure on a different theory”). Like the provisions invalidated in Booker, then, the purpose of §3742(g)(2) was “to make Guidelines sentencing even more mandatory than it had been.” 543 U. S. 220, 261 (2005). As we recognized in Booker, that purpose has “ceased to be relevant.” Ibid.

Footnote 14

 An award of good time credit by the Bureau of Prisons (BOP) does not affect the length of a court-imposed sentence; rather, it is an administrative reward “to provide an incentive for prisoners to ‘compl[y] with institutional disciplinary regulations.’ ” Barber v. Thomas, 560 U. S. ___, ___ (2010) (slip op., at 7) (quoting 18 U. S. C. §3624(b); alteration in original). Such credits may be revoked at any time before the date of a prisoner’s release. See §3624(b)(2). In contrast, a court’s imposition of a reduced sentence based on postsentencing rehabilitation changes the very terms of imprisonment and “recognizes that the [defendant’s] conduct since his initial sentencing warrants a less severe criminal punishment.” Brief for United States 50. Once imposed, a sentence may be modified only in very limited circumstances. See §3582(c).

Footnote 15

 Amicus points to two other procedural mechanisms that may shorten a defendant’s sentence—early termination of a term of supervised release, see §3583(e)(1), and the potential for sentencing reductions based on postsentencing substantial assistance, see Fed. Rule Crim. Proc. 35(b)—but neither presents an adequate substitute for a district court’s consideration of postsentencing rehabilitation. Supervised release follows a term of imprisonment and serves an entirely different purpose than the sentence imposed under §3553(a). See United States v. Johnson, 529 U. S. 53, 59 (2000) (“Supervised release fulfills rehabilitative ends, distinct from those served by incarceration”). Rule 35(b) departures address only postsentencing cooperation with the Government, not postsentencing rehabilitation generally, and thus a defendant with nothing to offer the Government can gain no benefit from Rule 35(b).

Footnote 16

 Indeed, some defendants will have a longer period of time between initial custody and trial, or between trial and sentencing, and those defendants—particularly if they are released on bail—will have a greater opportunity to demonstrate postoffense, presentencing rehabilitation. Even before Booker, the lower courts uniformly held that evidence of such rehabilitation could provide a basis for departing from the applicable Guidelines. See USSG App. C, Amdt. 602, comment., p. 74 (Nov. 2003) (“[D]epartures based on extraordinary post-offense rehabilitative efforts prior to sentencing … have been allowed by every circuit that has ruled on the matter”).

Footnote 17

 Of course, we do not mean to imply that a district court must reduce a defendant’s sentence upon any showing of postsentencing rehabilitation. Nor do we mean to preclude courts of appeals from issuing limited remand orders, in appropriate cases, that may render evidence of postsentencing rehabilitation irrelevant in light of the narrow purposes of the remand proceeding. See, e.g., United States v. Bernardo Sanchez, 569 F. 3d 995, 1000 (CA9 2009).

Footnote 18

 In any event, as the Court of Appeals recognized, neither Pepper II nor Pepper III held that a 40 percent downward departure was the only reasonable departure that a sentencing court could grant for Pepper’s substantial assistance; rather, the only issue those opinions actually decided was that a “40% downward departure was not an abuse of discretion.” 570 F. 3d, at 963–964.

OPINION OF BREYER, J.
PEPPER V. UNITED STATES
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-6822

JASON PEPPER, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[March 2, 2011]

   Justice Breyer, concurring in part and concurring in the judgment.

   I join Part III of the Court’s opinion as to the second question presented. As to the first question presented, I agree with the Court’s conclusion. And I agree with its opinion to the extent that it is consistent with this concurrence.

   Like the majority, I believe Booker requires us to hold 18 U. S. C. §3742(g)(2) unconstitutional. See ante, at 15–21; United States v. Booker, 543 U. S. 220 (2005); see also Apprendi v. New Jersey, 530 U. S. 466 (2000). And, like the majority, I believe that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of postsentencing rehabilitation. United States Sentencing Commission, Guidelines Manual §5K2.19 (Nov. 2010) (USSG). I would emphasize, however, that this conclusion does not leave a sentencing court free to disregard the Guidelines at will. To the contrary, the law permits the court to disregard the Guidelines only where it is “reasonable” for a court to do so. Booker, supra, at 261–262; Gall v. United States, 552 U. S. 38, 51–52 (2007); Kimbrough v. United States, 552 U. S. 85, 109 (2007). And an appellate court must be guided by the basic sentencing objectives of the statutes that create the Guidelines in determining whether, in disregarding the Guidelines, the sentencing court has acted unreasonably.

I

   The Guideline in question consists of a policy statement that sets forth an exception to normal Guideline rules. Normally, the Guidelines authorize a sentencing judge to consider a departure from an ordinary Guidelines sentence in any case “where conduct significantly differs from the norm” to which “a particular guideline linguistically applies.” USSG ch. 1, pt. A1, §4(b) (discussing the Guidelines’ general approach to departures). The policy statement at issue is one of a handful of Guideline rules that nonetheless forbid departure. It says that a defendant’s “[p]ost-sentencing rehabilitative efforts, even if exceptional, … are not an appropriate basis for a downward departure when resentencing.” USSG §5K2.19. The policy statement thereby adds “Post-Sentencing Rehabilitative Efforts” to such factors as race, sex, national origin, creed, religion, and socioeconomic status, which the Guidelines absolutely prohibit the sentencing judge from taking into account. USSG ch. 1, pt. A1, §4(b).

II

   Can a sentencing court, despite this policy statement, take account of postsentencing rehabilitation in the particular circumstances that this case presents? I cannot find the answer to this question in the language of the sentencing statutes, in sentencing traditions, in the pre-Guidelines case of Williams v. New York, 337 U. S. 241 (1949), or in this Court’s use of the word “advisory.” As the majority points out, a sentencing statute forbids any “ ‘limitation’ ” on the “ ‘information concerning the background, character, and conduct’ ” that “ ‘a court … may … consider.’ ” Ante, at 10 (quoting 18 U. S. C. §3661 (emphasis deleted)). But this provision must refer to all relevant information. See USSG §1B1.4 and comment. (generally incorporating §3661, but noting that there are certain factors that should not be considered for any purpose). If the Guideline policy statement’s absolute prohibition on consideration of postsentencing rehabilitation were legally binding, then information on that score (like information about race, religion, sex, or national origin) would fall outside the scope of this provision, for it would not be relevant. Thus, reference to the statute begs the question.

   Nor can I find much help in the majority’s reference to a sentencing “ ‘tradition’ ” that considers “ ‘every convicted person as an individual.’ ” Ante, at 9 (quoting Koon v. United States, 518 U. S. 81, 113 (1996)). That is because individualized sentencing is not the only relevant tradition. A just legal system seeks not only to treat different cases differently but also to treat like cases alike. Fairness requires sentencing uniformity as well as efforts to recognize relevant sentencing differences. Indeed, when Congress enacted the sentencing statutes before us, it focused upon the unfair way in which federal sentencing failed to treat similar offenders similarly. And Congress wrote statutes designed primarily (though not exclusively) to bring about greater uniformity in sentencing. See, e.g., Booker, supra, at 253–254. The statutes do so in large part through the creation of a system of Guidelines written by a Sentencing Commission, which Congress intended the courts to follow. See Mistretta v. United States, 488 U. S. 361 (1989) (Sentencing Commission constitutional); Rita v. United States, 551 U. S. 338, 348–349 (2007); 18 U. S. C. §3553(a) (identifying relevant factors in sentencing, including uniformity).

   The Williams case is similarly unhelpful. That is because Congress in the Sentencing Reform Act of 1984—the law before us—disavowed the individualized approach to sentencing that that case followed. Williams emphasized the importance of a sentencing court’s legal power to tailor punishment ability to fit the circumstances of each individual offender. 337 U. S., at 247 (emphasizing “modern concepts individualizing punishment”). But Congress, concerned that individualized sentencing had gone too far, wrote a new sentencing law designed to help correct “disparities” among similar defendants sentenced by different judges. See S. Rep. No. 98–225, p. 45 (1983) (“Sentencing disparities” are “unfair both to offenders and to the public”); id., at 38 (disparities “can be traced directly to the unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence”).

   Booker’s description of the Guidelines as “advisory” offers somewhat greater assistance—but only if that word is read in light of the Sixth Amendment analysis that precedes it. This Court has held that the Sixth Amendment forbids Congress (through the Commission) to create Guidelines that both (1) require judges (without juries) to find sentencing facts and also (2) tie those facts to the mandatory imposition of particular sentences. 543 U. S., at 226, 244; see also Apprendi, 530 U. S., at 490 (Sixth Amendment requires jury findings in respect to factual matters that require judge to increase sentence); Blakely v. Washington, 542 U. S. 296, 303–304 (2004) (same in respect to a State’s mandatory guidelines). In light of this Sixth Amendment prohibition, the Court, believing that Congress would not have intended to introduce new juries into each sentencing proceeding, excised the few particular provisions of the sentencing statutes that specified that application of the Guidelines was mandatory. Booker, 543 U. S., at 259. The Court believed that the relevant statutes remained workable without those few provisions, that their excision could further Congress’ basic sentencing intentions, and that excision was more likely to do so than invalidation of the entire statutory scheme. With an occasional exception (such as the statutory provision we strike down today), there is no reason to think that the sentencing statutes as limited in Booker run afoul of the Sixth Amendment. Ibid.

   Booker made clear that the remaining statutory provisions, while leading us to call the Guidelines “advisory” (rather than “mandatory”), do not give a sentencing judge carte blanche to apply, or not to apply, the Guidelines as that judge chooses. Rather, the “district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” Id., at 264. Moreover, Booker held that appellate court review of sentencing is valid. Booker explained that the “statutory language, the structure of the [Sentencing Reform Act], and the sound administration of justice,” taken together, require appellate courts to apply “reasonableness standard[s]” of review. Id., at 260–261, 262 (internal quotation marks omitted). Reasonableness standards, we added, are “not foreign to sentencing law.” Id., at 262. And the “Act has long required their use in important sentencing circumstances—both on review of departures … and on review of sentences imposed where there was no applicable Guideline.” Ibid. See also id., at 261 (appellate courts will apply “a practical standard of review already familiar to appellate courts: review for ‘unreasonable[ness]’ ”); id., at 264 (“[C]ourts of appeals” will “review sentencing decisions for unreasonableness”).

   We have also indicated that, in applying reasonableness standards, the appellate courts should take account of sentencing policy as embodied in the statutes and Guidelines, as well as of the comparative expertise of trial and appellate courts. Thus, in Kimbrough, we observed that in light of the “discrete institutional strengths” of the Sentencing Commission and sentencing judges, “a district court’s decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case ‘outside the “heartland” to which the Commission intends individual Guidelines to apply.’ ” 552 U. S., at 109 (quoting Rita, supra, at 351). We noted, however, that “while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge’s view that the Guidelines range ‘fails properly to reflect §3553(a) considerations’ even in a mine-run case.” 552 U. S., at 109.

III

    Unlike the majority, I would decide the question Kimbrough left open. And I would follow its suggested framework for evaluating “reasonableness.” As Kim-brough suggests, doing so takes proper account of the comparative institutional abilities of trial courts, appellate courts, and the Sentencing Commission. The trial court typically better understands the individual circumstances of particular cases before it, while the Commission has comparatively greater ability to gather information, to consider a broader national picture, to compare sentences attaching to different offenses, and ultimately to write more coherent overall standards that reflect nationally uniform, not simply local, sentencing policies.

   Applying Kimbrough’s suggested framework, I would reason very much as does the majority. The first question is whether a sentencing judge might sometimes take account of a (resentenced) offender’s postsentencing rehabilitation—despite a Guideline policy statement that says never. I would find that it is reasonable for the judge to disregard the Guidelines’ absolute prohibition, despite the Commission’s comparatively greater policy-formation abilities. That is because the Guideline policy statement itself runs counter to ordinary Guideline sentencing policy, which rarely forbids departures and then for very strong policy reasons. Supra, at 2. See USSG ch. 1, pt. A1, §4(b).

   The Commission offers no convincing justification for creating this exception with respect to postsentencing rehabilitation. The Commission’s commentary says that for a judge at resentencing to lower a sentence for this reason (reflecting good behavior while the case is on appeal) would conflict with the use of other mechanisms, such as “good-time” credits, for that purpose. But how is that so? A defendant, after sentencing but while his case is on appeal, may or may not be entitled to “good time.” That may depend upon whether he remains on bail or upon particular “good-time” rules. Regardless, the resentencing judge can take account of any such matter. See also ante, at 26–28.

   The Commission’s commentary also suggests it would be inequitable to allow an offender who is being resentenced to receive any kind of credit for his good behavior, say while his case was on appeal. But why is that so? After all, the Guidelines permit a judge to take account of an offender’s good behavior after arrest but before initial sentencing. That time period could last longer than the time taken up on appeal. Why should pretrial behavior count but appeal time behavior not count? Like the majority, I find this justification for the policy statement unconvincing. See ante, at 25–26.

   The second question is whether, given the sentencing court’s power to disregard the policy statement forbidding departures based on postsentencing rehabilitation, the facts and circumstances here could warrant a departure (or variance) for that reason. And the answer, in my view, is yes. This case presents unusual rehabilitative circumstances. As the majority observes: “By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had reestablished a relationship with his father, and was married and supporting his wife’s daughter.” Ante, at 14. These are case-specific facts and circumstances, and they are of the kind that should lead appellate courts to show their “greatest respect” for a sentencing decision, including a departure or variance, that rests upon them.

IV

   In sum, the sentencing statutes, as we have interpreted them, require courts of appeals to review sentences for reasonableness, including sentences that depart or vary from a specific Guideline. The appellate courts should review those decisions more closely when they rest upon disagreement with Guidelines policy. Kimbrough, 552 U. S., at 109. They should review those decisions with greater deference when they rest upon case-specific circumstances that place the case outside a specific Guideline’s “heartland.” See ibid.; Rita, 551 U. S., at 351; Koon, 518 U. S., at 98–99.

   By interpreting the sentencing statutes in this way, we can remain faithful to Congress’ basic intent in writing them—despite the need to invalidate statutory provisions that conflict with the Sixth Amendment. The statutes create a Sentencing Commission with authority to develop sentencing policy embodied in the Guidelines. The Guidelines are to further the statutes’ basic objective, namely greater sentencing uniformity, while also taking account of special individual circumstances, primarily by permitting the sentencing court to depart in nontypical cases. By collecting trial courts’ reasons for departure (or variance), by examining appellate court reactions, by developing statistical and other empirical information, by considering the views of expert penologists and others, the Commission can revise the Guidelines accordingly. See USSG ch. 1, pt. A1, §3. Trial courts, appellate courts, and the Commission all have a role to play in what is meant to be an iterative, cooperative institutional effort to bring about a more uniform and a more equitable sentencing system. See id., at 1–15. I would interpret the statutes before us accordingly.

THOMAS, J., DISSENTING
PEPPER V. UNITED STATES
562 U. S. ____ (2011)
SUPREME COURT OF THE UNITED STATES
NO. 09-6822

JASON PEPPER, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[March 2, 2011]

   Justice Thomas, dissenting.

   I would affirm the Court of Appeals and uphold Pepper’s sentence. As written, the Federal Sentencing Guidelines do not permit district courts to impose a sentence below the Guidelines range based on the defendant’s postsentencing rehabilitation.[Footnote 1] See United States Sentencing Commission, Guidelines Manual §5K2.19 (Nov. 2010) (USSG). Therefore, I respectfully dissent.

   In United States v. Booker, 543 U. S. 220, 258–265 (2005), the Court rendered the entire Guidelines scheme advisory, a remedy that was “far broader than necessary to correct constitutional error.” Kimbrough v. United States, 552 U. S. 85, 114 (2007) (Thomas, J., dissenting). Because there is “no principled way to apply the Booker remedy,” I have explained that it is “best to apply the statute as written, including 18 U. S. C. §3553(b), which makes the Guidelines mandatory,” unless doing so would actually violate the Sixth Amendment. Id., at 116; see Booker, supra, at 313–326 (Thomas, J., dissenting in part); Gall v. United States, 552 U. S. 38, 61 (2007) (Thomas, J., dissenting); Irizarry v. United States, 553 U. S. 708, 717 (2008) (Thomas, J., concurring).

   I would apply the Guidelines as written in this case because doing so would not violate the Sixth Amendment. The constitutional problem arises only when a judge makes “a finding that raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.” Booker, supra, at 313 (opinion of Thomas, J.). Pepper admitted in his plea agreement to involvement with between 1,500 and 5,000 grams of methamphetamine mixture, which carries a sentence of 10 years to life under 21 U. S. C. §841(b)(1)(A)(viii).[Footnote 2] United States v. Pepper, 412 F. 3d 995, 996 (CA8 2005). Because Pepper has admitted facts that would support a much longer sentence than the 65 months he received, there is no Sixth Amendment problem in this case.

   Under a mandatory Guidelines regime, Pepper’s sentence was proper. The District Court correctly calculated the Guidelines range, incorporated a USSG §5K1.1 departure and the Government’s motion under Federal Rule of Criminal Procedure 35(b), and settled on a 65-month sentence. Guideline §5K2.19 expressly prohibits downward departures based on “[p]ost-sentencing rehabilitative efforts, even if exceptional.” Nor is there any provision in the Guidelines for the “variance” Pepper seeks, as such variances are creations of the Booker remedy. I would therefore affirm the Court of Appeals’ decision to uphold Pepper’s sentence.

   Although this outcome would not represent my own policy choice, I am bound by the choices made by Congress and the Federal Sentencing Commission. Like the majority, I believe that postsentencing rehabilitation can be highly relevant to meaningful resentencing. See ante, at 13–15. In light of Pepper’s success in escaping drug addiction and becoming a productive member of society, I do not see what purpose further incarceration would serve. But Congress made the Guidelines mandatory, see 18 U. S. C. §3553(b)(1), and authorized USSG §5K2.19. I am constrained to apply those provisions unless the Constitution prohibits me from doing so, and it does not here.

Footnote 1

 I agree with the Court that the law of the case doctrine did not control Pepper’s resentencing. See ante, at 29–31.

Footnote 2

 Pepper also stated that he understood both the 10-year statutory minimum and that the Government was making no promises about any exceptions.

JASON PEPPER, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the eighth circuit

[March 2, 2011]

   Justice Alito, concurring in part, concurring in the judgment in part, and dissenting in part.

   I join Part III of the opinion of the Court. I agree with the Court that the decision below cannot be affirmed on the basis of 18 U. S. C. §3742(g), as amicus suggests. This provision was designed to function as part of the mandatory Guidelines scheme that the Court struck down in United States v. Booker, 543 U. S. 220, 258–265 (2005). Although amicus’ argument is ingenious, even the sort of surgery sanctioned in Booker cannot transform this provision into one that can survive in the post-Booker world.

   I also concur in the judgment to the extent that it holds that the decision below regarding evidence of postsentencing rehabilitation must be reversed. That decision, which entirely precluded consideration of such evidence, was consistent with the policy statement in §5K2.19 of the United States Sentencing Guidelines, but “[t]he Booker remedial decision … does not permit a court of appeals to treat the Guidelines’ policy decisions as binding.” Kimbrough v. United States, 552 U. S. 85, 116 (2007) (Alito, J., dissenting).

   Under Booker, however, district judges are still required in almost all cases to give significant weight to the policy decisions embodied in the Federal Sentencing Guidelines. See 552 U. S., at 116; Gall v. United States, 552 U. S. 38, 61–67 (2007) (Alito, J., dissenting). Congress delegated to the Sentencing Commission the authority to make policy decisions regarding federal sentencing, see 18 U. S. C. §§3553(a)(4), (5), and requiring judges to give significant weight to the Commission’s policy decisions does not run afoul of the Sixth Amendment right that the mandatory Guidelines system was found to violate, i.e., the right to have a jury make certain factual findings that are relevant to sentencing.

   While I continue to believe that sentencing judges should be required to give significant weight to all Guidelines provisions and policy statements, see Kimbrough, 552 U. S., at 116 (opinion of Alito, J.), the Court in Kimbrough held that sentencing judges may not be required to give weight to some unusual policy decisions, see id., at 109–110 (majority opinion). And Justice Breyer now makes a reasonable case that the particular policy statement involved in this case is distinguishable from almost all of the other rules that the Commission has adopted. See ante, p. ___ (opinion concurring in part and concurring in judgment). His position seems to me more consistent with Kimbrough than the Court’s. It would at least prevent us from sliding all the way down the slippery slope that leads back to the regime of entirely discretionary federal sentencing that preceded the enactment of the Sentencing Reform Act of 1984, 98 Stat. 1987.

   Anyone familiar with the history of criminal sentencing in this country cannot fail to see the irony in the Court’s praise for the sentencing scheme exemplified by Williams v. New York, 337 U. S. 241 (1949), and 18 U. S. C. §3661.* By the time of the enactment of the Sentencing Reform Act in 1984, this scheme had fallen into widespread disrepute. See, e.g., Mistretta v. United States, 488 U. S. 361, 366 (1989) (noting “[f]undamental and widespread dissatisfaction with the uncertainties and the disparities” of this scheme); United States v. DiFrancesco, 449 U. S. 117, 142 (1980) (“It has been observed … that sentencing is one of the areas of the criminal justice system most in need of reform”); S. Rep. No. 98–223, p. 62 (1983) (“The shameful disparity in criminal sentences is a major flaw in the existing criminal justice system”). Under this system, each federal district judge was free to implement his or her individual sentencing philosophy, and therefore the sentence imposed in a particular case often depended heavily on the spin of the wheel that determined the judge to whom the case was assigned. See Bullington v. Missouri, 451 U. S. 430, 444, n. 16 (1981) (“There has been no attempt to separate policymaking from individual sentencing determinations” (internal quotation marks omitted)); M. Frankel, Criminal Sentences: Law Without Order 5 (1973) (“[T]he almost wholly unchecked and sweeping powers we give to judges in the fashioning of sentences are terrifying and intolerable for a society that professes devotion to the rule of law”).

   Some language in today’s opinion reads like a paean to that old regime, and I fear that it may be interpreted as sanctioning a move back toward the system that prevailed prior to 1984. If that occurs, I suspect that the day will come when the irrationality of that system is once again seen, and perhaps then the entire Booker line of cases will be reexamined.

* Insofar as 18 U. S. C. §3661 permitted a sentencing judge to consider evidence of postsentencing rehabilitation, that provision was effectively modified by the subsequent enactment of the Sentencing Reform Act, which instructed the Sentencing Commission to adopt guidelines and policy statements that avoid “unwarranted sentencing disparities,” 28 U. S. C. §991(b)(1)(B); see also §994(f), and which provided that sentencing courts “shall consider … any pertinent policy statement,” 18 U. S. C. §3553(a)(5).

Print this transcript Transcript: 

ORAL ARGUMENT OF ALFREDO PARRISH ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument next this morning in Case 09-6822, Pepper v. United States.

Mr. Parrish.

Mr. Parrish: Mr. Chief Justice, and may it please the Court:

Having successfully completed drug treatment in prison, and having come home to succeed as a college student, valued employee, and family man, Jason Pepper presents to this Court two questions: Whether post-sentencing rehabilitation is a permissible basis for a downward variance from the sentencing guidelines at resentencing, and whether the district court judge in Pepper's resentencing was bound by the law of the case doctrine in its 5K departure ruling absent new facts, changes in the controlling law, or to avoid a manifest injustice.

Post-sentencing rehabilitation has traditionally been a relevant factor for judges to consider and is now a permissible ground for a non-guideline sentence.

3553(a) and 3661 are the authorities permitting post-sentencing rehabilitation as a consideration for variance.

Chief Justice John G. Roberts: Counsel, I think you -- I think you have got a difficult job navigating between your two issues.

It seems on the first one, the 40 percent to 20 percent, you are saying: Look, you've got to stick with what you did before; and when it gets to the post-sentencing consideration, you are saying: Well, we can -- all bets are off, we can start -- start anew; we can look at things that have happened since.

Is there a way you reconcile that -- those -- that tension?

Mr. Parrish: They are like apples and oranges.

The law of the case doctrine is what you refer to as a matter that is left in the district court.

The other issue of the -- whether or not the individual qualifies for downward variance is a completely separate issue.

The law of the case remains with the district court judge.

In the other issue that we have, it's whether or not he's entitled to a downward variance based upon the book of remedies.

So they are not, in fact, the same issues.

And there is no tension--

Justice Ruth Bader Ginsburg: If the law of the case -- if the law in the case is left to the district court, then the district court can say, well, the law of the case, that's what that other judge said, but it was a question of what's a reasonable time, and I'm -- I appraise it differently.

The -- the judgment has been vacated, the sentence has been vacated, so how does the law of the case survive?

I mean, is -- the judgment is no longer--

Mr. Parrish: --The law of the case survives on a couple of basic principles.

One, there has to be new facts that the district court judge heard; there has to be a change of controlling law; and there has to be a reason to avoid a manifest justice.

If you go back to the 5K, one departure that the first judge made the decision on, that law -- that was law of the case.

That percentage followed Mr. Pepper straight through the process.

That's a totally separate ruling from any of the other factors in this case that relate to his downward variance.

Justice Ruth Bader Ginsburg: --Can a district judge say, later on in the process: I made a ruling earlier in the case; I have since done a lot of research, and I now think that that ruling was wrong?

Mr. Parrish: Absolutely, they could do that.

The circumstances would be, did they see new facts?

Was there a change of controlling law?

The reason we do this is because we want to have confidence in that decision to make sure litigants don't go judge shopping.

So that's part of the reason this law of the case doctrine is in there.

Even in Judge Posner's Second Circuit decision we cite in our brief, you defer to the first judge.

But any time a judge can reconsider, there is no problem with that.

The law of the case in the 5K departure, when the first district judge heard substantial evidence with regard to the issue of cooperation, and that's what he did.

When the next judge heard it, she heard no new facts, no change in controlling law, and absolutely heard no evidence with regard to--

Justice Sonia Sotomayor: Counsel--

Chief Justice John G. Roberts: That's kind of a fortuitous situation, then.

You are sort of saying if you end up with the same judge, she can reconsider her own prior determination.

But if you, for whatever reason, the death of the first judge, you're in a different judge; she's bound by what went before.

That doesn't seem right.

Mr. Parrish: --Well, that's an excellent example -- bound by -- but have you had to look at the law of the case and make a decision whether or not new facts came in, there was a change in controlling law.

Otherwise, you are still stuck as law of the case with that particular information.

If new facts came in--

Justice Antonin Scalia: Even with the original judge?

Mr. Parrish: --Even with the original judge.

Absolutely, Justice Scalia.

Justice Antonin Scalia: Unless there are new facts or some -- some new--

Mr. Parrish: New facts, a change in controlling law, or other factors.

It's a basic concept, and that's why a lot of cases are not floating around about that.

Plus the government--

Justice Sonia Sotomayor: --Counsel, I'm -- I'm a little confused.

Mr. Parrish: --Sure.

Justice Sonia Sotomayor: I thought that the entire premise of Booker was that judges should have full discretion under 3553 to balance the factors that are required by the statute to be balanced and to come to what they believe is the appropriate sentence.

If we impose, in a resentencing, in a remand order that has vacated a prior sentence, a limitation on that power, don't we in turn do exactly what you are arguing in your first half of your appeal, which is unconstitutionally tie the hands of the judge?

I think that is what Justice -- the Chief Justice was getting to in his first question.

Mr. Parrish: Absolutely.

That's why they are apples and oranges.

If you go to the Booker decision with regard to Mr. Pepper -- and Mr. Pepper's decision is under the remedial remedy that we are asking that you would impose in that case -- Mr. Pepper's case is still on direct appeal.

As a matter of fact, if the restrictions placed upon 3742 (g)(2), if they remain, Mr. Booker would not have gotten the advantage of the remedial ruling in the case.

Actually, he was entitled to it as part of the Sixth Amendment.

Justice Sonia Sotomayor: So why isn't a new sentence just that: A new sentence?

And the judge, whoever the judge is, can do what they are supposed to do, which is to look at all of the factors and weigh them as that judge believes is appropriate, assuming the remand order is not a limited order.

Mr. Parrish: They can look at all of the facts, if there are new facts presented.

The difference is, in the law of the case, there were no new facts.

In this case, there were new facts to consider, which would be part of the post-sentencing rehabilitation.

In that issue, the Eighth Circuit rule that prohibited this was not even part of the 3742(g)(2) statute.

Justice Antonin Scalia: --Yes, but one -- one of the new facts that -- that is before a judge on remand is that part of the basis for his decision has been eliminated.

He -- he gave additional time because of a certain factor, and the court of appeals says: Oh, no, you can't look at that factor.

And then he looks at the whole thing and says: Gee, without that factor this guy is getting off scot-free.

You mean he cannot -- he cannot readjust his other discretionary judgments in light of the fact that this additional factor doesn't exist?

That seems rather -- I don't -- counterintuitive, I guess.

Mr. Parrish: Well -- well, Justice Scalia, under the -- each that is presented to the court, if you mix the law of the case doctrine with the 3742 problem, it creates a problem in analysis.

That's why they have to be analyzed separately.

A judge can look at new facts, even under the remand statute, now that they are restricted to the facts that were part of the first case.

That's what 3742(g)(2) does.

It makes the guidelines sentences mandatory on remand.

That's the problem with it.

If they become mandatory on remand, the problem is that nobody gets the advantage of the Booker remedial ruling of it directly, and all sentences on remand are mandatory.

Even in the Booker decision, you make it -- in which Mr. Pepper was a recipient of, because his case was going on at the time -- he did not ever get the benefit of the Booker decision; when it was sent back, he never did.

Mr. Booker, under 3742(g)(2), never would have gotten that advantage.

And there were several other factors that were coming into play where people would not get an advantage of the Booker ruling.

Justice Ruth Bader Ginsburg: What do you do with 3742(g)(2)?

Mr. Parrish: You excise it.

You discussed it in the Booker decision.

And in the Booker decision, you indicated, Justice Ginsburg, that you exercised two of the other -- 3553(b), you also exercise -- excised 3742(e), which made the sentences on remand mandatory.

In this case, 3742(g)(2)(A) and (B) were left open.

And what happens then, the district court judge has to come back.

Once they look at the decision, they are bound within those original facts.

They can't go outside of those facts to decide something different or to permit a variance.

The Eighth Circuit didn't use that rule.

What we are suggesting is that you excise that rule.

You excise 3742(g)(2) and you excise (A) and (B) of that section.

Justice Samuel Alito: Would it be consistent with Booker for Congress to pass a statute that says the following: When a judge initially imposes a sentence, the judge must specify all of the factors that the judge thinks are relevant to that sentence, whether it's going to be a sentence within the guidelines or a sentence that is outside of the guidelines, and if there is then a remand, the judge may impose a sentence based on the factors that were listed at the initial sentencing but not based on any of the other factors?

Mr. Parrish: Justice Alito, Congress could do that.

Unfortunately, that's not what they did in this case.

But 3742, which came down as part of the PROTECT Act, in that case, Booker came after that.

So consequently, 3742(g)(2) is problematic.

Justice Samuel Alito: Isn't that exactly what 3742(g)(2) does?

Mr. Parrish: It does not.

Justice Samuel Alito: It says under 3553(c), the sentencing judge is supposed to explain the factors that justify the sentence that is imposed.

And that would -- that means explain a sentence outside of the guidelines, and also explain why the judge chooses a particular sentence within the guidelines range.

We have -- 3742(g)(2) says that when there is a remand, the judge may take into account all the factors that were mentioned the first time, but not the other factors.

Mr. Parrish: Well, Justice Alito, let me give you an example.

What if they didn't state the reasons and you go up on the variance from the district court decision saying you didn't get the stated reasons?

The appellate court then sends that decision back and the judge is then bound by those facts.

And if they didn't find all the facts, suppose again they went up on a presumption that the guidelines were, in fact, reasonable.

In that instance, you wouldn't get anything for the judge to work from.

And absolutely, they work from facts now within the guidelines.

You take the Stapleton case that is in the Eighth Circuit that's cited in our brief.

They will increase the guidelines within the guidelines on new facts, but you can't take those same new facts and then use them to assist your clients under 3553, which goes against all of the things--

Justice Ruth Bader Ginsburg: Is the sentencing -- is the sentencing commission -- it still has that guideline that you can -- you can depart -- you can lower within the guidelines, but not beyond it?

Mr. Parrish: --Correct.

You mean under the post-sentencing rehabilitation?

Justice Ruth Bader Ginsburg: Yes.

Mr. Parrish: They have it as a policy bar, but the Kimbrough decision really indicates that the courts are not supposed to use that as only one factor.

You are supposed to look at all the rest of the factors.

And as a matter of fact--

Justice Ruth Bader Ginsburg: But as far as the sentencing commission itself is concerned, its position is still that post-conviction behavior does not warrant a below-the-guideline sentence?

Mr. Parrish: --Correct.

And it comes right out of the Eighth Circuit, which was not based upon empirical data like a lot of these other issues are based on that they create as policy matters.

But under Kimbrough, you said policy matters are only one consideration.

You must, in fact, look at all the other factors.

You also said it in Reeder, too.

You are not bound by just one of the factors.

The court has to look at everything in order to be able to make a decision to be consistent with all the other decisions that you have written in this area.

Justice Samuel Alito: Suppose that Mr. Pepper had an identical twin, and suppose that Mr. Pepper and his twin engaged in the same criminal conduct.

They are charged with the same offenses; they are tried together; they are convicted of exactly the same offenses; they are sentenced on the same day.

Between sentencing and the time of the appeal, they rehabilitate themselves in exactly the same way.

The twin sentence is affirmed on appeal, and Pepper's sentence is overturned and he gets a remand for a new sentence.

Why is it justified for Mr. Pepper to get credit for post-sentencing rehabilitation, but his twin does not?

Mr. Parrish: Well, in that instance, the question is: Do guidelines accept the fact of some disparity?

And there is what's called warranted disparity.

Mr. Pepper did exactly everything that we want a person convicted of a crime to do.

He exceeded it.

And in that instance, if his case comes back down, it doesn't fall on any concept of unwarranted disparity.

There is a difference.

There is a difference with every individual--

Justice Samuel Alito: His twin did everything that was expected of him, too, but he doesn't get any credit for the rehabilitation.

He just gets good time credit for good conduct while he's incarcerated.

Mr. Parrish: --But our guidelines in our laws make situations where people who are unique and who, in fact, exceed, don't fall into a separate category of being unwarranted disparity.

The emphasis is on "unwarranted".

There is some disparity, and if a person is unique and that person does, in fact, under 3353 factors, meet all of the things that require us to look at a person as an individual, that's what we want in our society.

And that's what your cases -- 3553, 3661 -- that's what they indicate.

You look at the person as an individual.

And true enough, some disparity will be there, but it's a warranted disparity.

And it's something that the court can look at, along with all the--

Chief Justice John G. Roberts: Well, it's -- it's warranted that the one get the benefit and it's unwarranted that the other does not.

I mean, the departure in the case of the one who gets reconsideration is warranted, but that doesn't mean that the disparity is warranted.

Mr. Parrish: --Well, it would be on a variance and, as you know, under the Gall decision, Chief Justice Roberts, you can look at all of the other factors.

In the departure theory, it's a little different.

They are little bit narrower, given it's more restrictive, and there are other factors that come into play.

Under the variance theory, you have to look at the entire individual.

So if that individual can demonstrate that they have made improvements -- not just gone to drug classes, but completed them successfully; not just worked as an employee, but also excelled and got on a management track; not just went to college, but got on the dean's list and made straight A's -- those are the factors that we want these individuals to have.

And that's why 3553(a) allows us that latitude, and 3661, which is a long history based upon no limitation being placed upon the district court judge, these are the things we want these people to have--

Justice Stephen G. Breyer: Is there a guideline that says that there cannot be a departure for rehabilitation after an initial sentencing that is set aside?

Mr. Parrish: --It's not a guideline.

There's a policy out of the--

Justice Stephen G. Breyer: No.

So there is no guideline.

So as far as the answer to Justice Ginsburg -- what I thought her question was, that is -- the guidelines initially said that the commission has the power to limit departures, but it doesn't do it, except for race and gender--

Mr. Parrish: --And age, and factors like -- that's absolutely right.

Justice Stephen G. Breyer: --and age.

That's right.

So under the guidelines, a judge can depart for any reason except those few forbidden things, which I think are properly--

Mr. Parrish: And that's the grammar, variance.

That's correct.

Justice Stephen G. Breyer: --And that's still the law.

That's still the law.

Mr. Parrish: Correct.

That's correct.

Justice Stephen G. Breyer: So it's the circuits that have made this thing up?

Mr. Parrish: The Eighth Circuit created it out of whole cloth following the Sims case.

It was a policy that was actually adopted by the guidelines in the year 2000.

Prior to that, there were about 8 circuits that allowed post-sentencing rehabilitation.

Now even under the new analysis, there are about 6 circuits--

Justice Stephen G. Breyer: Well, what would the source of law be to make up such a thing?

I mean, what is the source -- what law gives the right to the -- to a -- a circuit, to make that up, would have to say it was an unreasonable thing to do.

Now, I guess you could have an argument either way on that, but it doesn't strike me off the bat as unreasonable, where a person has rehabilitated himself, to take that into account.

Mr. Parrish: --I would agree with you.

Justice Stephen G. Breyer: And we would have the power to say that.

Mr. Parrish: Absolutely.

Justice Antonin Scalia: What about 3742(g)(2)?

That's what we're arguing about.

Mr. Parrish: It is what we are arguing about, not about the policy, because they didn't even use that, Justice Scalia, in making their decision.

I would like to reserve my time.

Chief Justice John G. Roberts: Thank you, Counsel.

Mr. Parrish: Thank you so much.

Chief Justice John G. Roberts: Mr. McLeese.

ORAL ARGUMENT BY ROY W. McLEESE, III, ON BEHALF OF THE RESPONDENT, IN SUPPORT OF THE PETITIONER

Roy W Mcleese Iii: Mr. Chief Justice, and may it please the Court:

There is no valid basis to categorically bar variances under the -- variances from the guidelines based on post-sentencing rehabilitation.

That is true for four primary reasons.

First, it's undisputed that post-sentencing rehabilitation is logically irrelevant to statutory sentencing factors in 3553(a), including the need for deterrents and the need to protect the safety of the community.

Second, the guidelines themselves authorize consideration of presentencing rehabilitation to a limited extent, because it's permissible under the guidelines to consider presentencing rehabilitation in selecting a sentence with inside the guideline range.

What the guidelines do prohibit, and there is a provision in the guidelines that does prohibit the -- a departure from the guidelines based on post-sentencing rehabilitation.

The guidelines prohibit that, but the judgment of the commission about how much weight that factor can be given after Booker in an advisory guideline regime is advisory rather than mandatory.

Third--

Justice Stephen G. Breyer: Which guideline?

What guideline prohibits that?

Roy W Mcleese Iii: --5K2.19.

And third, contrary to the suggestion of the amicus, there is no general principle in our law that at a resentencing, new information may not be considered.

To the contrary, the consistent assumption of the law is that at a resentencing, you take the defendant as you find him as of the time of resentencing.

That is clear from this Court's decisions in Pierce and in Wasman.

It is clear from the large body of cases from the lower courts cited in Petitioner's brief at pages 42 through 44.

That's the way the guidelines operate, so there is no general principle that you cannot consider new information.

Now, it's true, as Justice Alito's question suggested earlier, that that can result in differences of opportunity, where one defendant will have an opportunity for a resentence and new information will be considered as to that defendant; a similarly situated defendant will not get a resentencing.

But that opportunity is sometimes referred to as "luck".

First, can be good luck or bad luck, and to take the example Justice Alito gave of two twins, if you have an example of two defendants who are twins who are each convicted of an offense -- let's say burglary -- and they are given very lenient sentences, and because the judge looks at their record at the time and determines that they are sympathetic.

They are don't have a prior criminal record.

One of them's conviction, you know, has no claims of legal error relative to his conviction; he gets no resentencing.

The other gets a resentencing.

By the time of resentencing, it has become clear that that defendant had previously committed several murders, and he's -- you know, murdered -- has also committed a subsequent murder.

There is no question that at that resentencing, that information would be considered.

There is no question there would be a disparity, and it would be true even if, let's say, those earlier murders had been committed by both of the twins together.

Justice Samuel Alito: Well, isn't there a difference between evidence that -- evidence of conduct that occurred prior to the initial sentencing, but wasn't known at the time of the initial sentencing, and evidence of conduct that occurs between the initial sentencing and the resentencing?

Roy W Mcleese Iii: There could be, but again -- maybe going too far with the example of the two twins, if the two twins, while they were serving -- let's say they got lenient sentences, but not probation.

While they were serving in jail together, they murdered a correctional officer.

If one of the defendants does not get a resentencing, if one of those twins does not, there will be no opportunity for that to be taken into account.

Justice Antonin Scalia: And what's your--

Roy W Mcleese Iii: His brother gets a resentencing--

Justice Samuel Alito: Maybe it's all or nothing.

Justice Antonin Scalia: --It is.

Justice Samuel Alito: Maybe it works both ways, that the defendant doesn't get the credit for good conduct between sentencing and resentencing, but also doesn't get punished at resentencing for unproven conduct that occurs between the first sentence and the next -- and the second sentence.

Roy W Mcleese Iii: --That's a possible rule of law, but my point was that's not the rule of law we've ever had.

That's not the -- and I should say, nor is it the rule of law that is created by 3742(g)(2), because 3742(g)(2) is not a rule about consideration of new evidence.

It's an anti-departure provision.

It permits consideration of new evidence, and it permits these kinds of -- if you -- disparities, whether warranted or not, because it permits consideration of new evidence in determining the guidelines' range, new evidence about loss amounts or -- or whatever.

It permits consideration of new evidence as it might relate to upward adjustments or downward adjustments, as it might relate to criminal history.

What it forbids is new variances or departures.

So 37422(g)(2) does not implement some general policy with respect to new evidence, nor, should I say, to the guidelines, because as I said, the guidelines permit consideration of post-sentence rehabilitation in setting a guideline range.

They reflect a judgment not about the disparities always trumping other considerations, including accuracy in sentencing, but only how much weight that those disparities--

Justice Antonin Scalia: Is that your fourth point?

I am all on pins and needles waiting for your fourth point.

Roy W Mcleese Iii: --No.

Apologies.

The fourth point is simply that 3742(g)(2), if valid, would foreclose consideration of post-sentencing rehabilitation, but after Booker it is not valid, and--

Justice Anthony Kennedy: If Congress reenacted 3742(g)(2) tomorrow, would it be valid?

Roy W Mcleese Iii: --It would be invalid.

It would be invalid because it would be -- as applied in certain circumstances, it would unconstitutionally constrain the authority of judges at resentencings and also be -- with Booker.

Justice Stephen G. Breyer: Why?

Why?

Because look, the -- that is not this case.

This case, they never had a chance to consider whether Booker applies or not, so this is, I think, a special case.

But think of 3742(g) in general.

It's pretty easy to read that section as applied to instances where a judge, the initial sentencing judge, has decided on his own volition to apply the guidelines rather than not to apply them.

Now, in such a case, he sentences the individual.

There's then an appeal, and the appeal he is reversed on.

What in the Constitution says there has to be a second chance to decide whether the guidelines or something else should apply?

What in Apprendi says that?

What in any of these cases says that?

This is an Apprendi problem.

As you know, I've dissented throughout; I think this is bad policy, but -- I've disagreed with everything, but forget that fact, important though it is.

[Laughter]

But the -- the thing that's worrying me about -- and I don't think -- I agree with you on policy, but what I'm -- what I'm having trouble with is: Is it better under the law to say yes, we can interpret 3742(g) so it can be constitutional, and then if in some cases it violates Apprendi, let the Court say that in this case it violates Apprendi.

But it just isn't clear to me, which is why I left it alone the first time.

It's not clear.

So -- so as to when it is, when it isn't constitutional.

You got my whole question there?

Roy W Mcleese Iii: I do.

Justice Stephen G. Breyer: And I would appreciate as much answer as can give me.

Roy W Mcleese Iii: Take an example that is in the briefs.

If at an original sentencing a judge determines the guideline range and ends up calculating it to be relatively low -- 57 to 73 months, which probably aren't even exact numbers -- and determines that that's an appropriate sentence, and although the defendant is urging various factors as a basis for downward -- for variance from the guidelines, the judge determines that there is no reason to vary because this is a sentence that seems reasonable.

So although those reasons might well be persuasive in some contexts, they aren't given the range now.

The government takes an appeal and argues to the court of appeals: In fact, the judge was wrong; the guideline range is much higher.

And so on remand at the resentencing, the judge makes some factual determinations, not found by the jury or admitted by the defendant, which increase the guideline range under the new advice from the court of appeals to a guideline range of 121 to 151 months.

Justice Stephen G. Breyer: You think that violates Apprendi?

Roy W Mcleese Iii: Well, if the judge then says: I would like to vary from the guidelines; I am locked under the guidelines to a 121-month sentence, and I have -- I didn't -- it's true I didn't vary before on these grounds, but that's because the sentence didn't author -- didn't warrant -- because of relative lack of severity, did not warrant a variance, I think that the -- the logic of Apprendi and Booker would foreclose constraining resentencings in that way.

Justice Samuel Alito: I'm--

Roy W Mcleese Iii: And I think that's an answer.

If I could just--

Justice Samuel Alito: --Yes.

Roy W Mcleese Iii: --I think that's an answer to the question that you asked earlier, which is, I think, if Congress enacted a statute which categorically said that whatever happens at the original sentencing, the judge has to list any reason that the judge is relying for a downward variance or departure, and then cabins the judge on a remand, that in certain contexts that would be inconsistent with this Court's line of cases from Apprendi through Booker.

Justice Samuel Alito: Well, under 3553(c), the court is supposed to explain the reasons for the sentence, even if it is within the guidelines; isn't that right?

Roy W Mcleese Iii: Yes.

Justice Samuel Alito: And so if the court is deciding whether the sentence should be 57 months or 63 months, whatever the figures were that you gave.

The court thinks that some factor -- let's say age is significant -- the court should say, I am sentencing the defendant to 57 as opposed to 63 because of the defendant's advanced age or young age or whatever it is.

Now on appeal, the -- the court of appeals says the guidelines sentence was improperly calculated, it should be -- the real range is 120 to 125 months, remand.

Now if the court wants to grant a departure or a variance based on age, the court has mentioned age previously as a relevant factor, and it can do that.

But if age was not -- if age was not relevant to the determination of where within the guidelines this sentence should be set, why is it -- why does the Constitution require that age be a relevant factor, a factor that's open to the judge on resentencing?

Roy W Mcleese Iii: Well--

Justice Samuel Alito: It's just the notice provision.

It's not -- it's not something that substantively limits what the court can do.

Roy W Mcleese Iii: --To clarify, a judge is required to state in open court orally the reasons for a sentence inside the guideline range, only if the range is sufficiently large, and the written statement of reasons does not require -- the reasons for selecting a sentence within the guideline range are not required to be in the written statements of reasons.

The written statement of reasons applies only to grounds outside the -- the guidelines.

And to -- from a practical perspective it would be extremely difficult to expect sentencing judges to list every conditionally or contingently relevant fact depending on whatever sentence ultimately comes back on remand, that might be relevant to a reason to depart from a range that the judge is not contemplating at the time of the sentencing.

Ut I should say also that if -- the answer to this question of better Congress could reenact 3742(g)(2) after Booker, and it would be constitutional or not constitutional as applied in certain settings is not essential to our point, because the appeal provisions that were excised in Booker were not determined by the Court, they were not excised because the Court determined they would be independently constitutional.

The remedial component of the Booker opinion was focused on the question of, having found a constitutional violation, what then do we do to remedy it, and what the Court said was the way we will remedy this is that we will make the guidelines advisory rather than mandatory.

Justice Stephen G. Breyer: The answer to this case is, I don't think, too hard.

You say it's at least questionable enough, 42(g) you could say, at least questionable enough that it is the same box as the ones that were excised.

Roy W Mcleese Iii: And--

Justice Stephen G. Breyer: And then there has not been focus in the district court on what the district court would want to do, assuming he is free to apply the guidelines or not, on the remand decision that that judge has never made.

Roy W Mcleese Iii: --Yes, and to elaborate on that--

Justice Stephen G. Breyer: Is that right?

Roy W Mcleese Iii: --Just -- just by its terms, section 3742(g)(2) is inconsistent with the remedial rule announced in Booker, which was that the guidelines would be advisory rather than--

Justice Stephen G. Breyer: They didn't say -- forget that argument.

What I was about--

Roy W Mcleese Iii: --But more specifically--

Justice Stephen G. Breyer: --I do have another point I would like to get out, as long as I have this opportunity.

It seems to me there is a considerable confusion, perhaps, only from my point of view, but this word "variance" -- I mean why is it felt necessary to use the word "variance"?

If it is true, and it's not totally true, but if it's true the judge -- you can apply the guideline, apply it.

Now, the guidelines themselves gives you the right to depart in every single case but, for example, a handful of factors such as race, where you really shouldn't change the thing just because of race.

So what is the need for the variance?

Now, maybe this 5K9.

whatever that is, maybe there are a handful in which there is a need, and maybe this is an example of it.

But are there a lot, many, what -- can you just talk a little bit about it.

Roy W Mcleese Iii: --It's two points with respect to that.

One of which is, this is a provision where the -- the commission has specifically said it is not lawful to depart on this basis, though it is permissible, again, to sentence within the range--

Justice Stephen G. Breyer: But it's just a policy statement.

Does it enjoy the same status of law?

Roy W Mcleese Iii: --Correct.

Yes, they are treated -- in the era when the guidelines were treated as mandatory, they were treated as guidelines in return.

There are other guidelines provisions about departures which either foreclose other bases or which will say they were not usually or ordinarily a basis for departure.

Justice Stephen G. Breyer: Oh, I see.

Roy W Mcleese Iii: And, so, there still is litigation in a post mandatory guideline system about whether it is a correct application of the guidelines to on this basis.

Chief Justice John G. Roberts: Counsel, perhaps before your time is up, you would like to address the first question?

Roy W Mcleese Iii: Yes.

With respect to the law of the case issue, as it has been framed by the -- the -- the briefs by Petitioner on the merits in this Court, it is an extremely narrow issue; and that is, taking as a given that the Eighth Circuit had authority to order de novo resentencing and, in fact, it did order de novo resentencing was at that resentencing, the district court -- the resentencing district court judge bound by the earlier judge's discretionary determination that the substantial assistance provided by defendant Pepper justified a 40 percent reduction.

And to ask that question is to answer it in the sense that the phrase "de novo" means anew or afresh.

And the point--

Chief Justice John G. Roberts: But it has nothing -- but what if the appeal had nothing to do with the issue at all?

I'm thinking in -- the analogy in a civil context, so you have two totally unrelated issues.

If you appeal issue B and that is what the fight is about, and you reverse and send back, it would at least be unusual for judge to say, well, and by the way, I'm coming out the other way on issue A.

Roy W Mcleese Iii: --And that is true in the civil setting.

Courts have taken the view that sentencing is different because sentencing is a relatively discreet proceeding where there are a number of interconnected determinations, a lot of them discretionary, based on the judge's assessment, a lot of them conditionally relevant to each other--

Chief Justice John G. Roberts: These are not interconnected, are they?

Roy W Mcleese Iii: --Well, the amount of substantial assistance that is given in a particular case can easily be connected to antecedent determinations, including what the guidelines level is.

Since judges often--

Chief Justice John G. Roberts: No, my point is that the level of assistance is not in any way connected to the post-sentencing conduct.

Roy W Mcleese Iii: --These two issues are not interrelated, but I'm explaining the reason for of the doctrine in the sentencing setting.

The greater willingness of courts of appeals to order de novo resentencing and say even though the particular issue on court of appeal does not directly open up the other issues that may have been determined at sentencing, judges in the -- courts of appeals in the sentencing context all agree they have authority to order de novo resentencing where they think it's appropriate.

And they tend to think it is more appropriate in the sentencing context than generally, because as I said--

Chief Justice John G. Roberts: Well, but why -- why does that matter when you are talking about two totally unrelated issues?

Roy W Mcleese Iii: --Because also--

Chief Justice John G. Roberts: There is no reason to suppose that the court of appeals thinks there ought to be or any issue with respect to the question A when they focus solely on question B.

Roy W Mcleese Iii: --I agree.

But again, when the court of appeals orders de novo resentencing, that doesn't open up only substantial assistance.

The point is, the judge is going to go through and as of the time of the resentencing, determinations on the situation as it existed at that time.

So, it is possible and not at all unusual that issues that were not up in the court of appeals will come up on resentencing.

Chief Justice John G. Roberts: So, you are worried about the general rule, but you agree that none of these arguments make any sense in this case?

Roy W Mcleese Iii: I -- I agree that it would have been permissible for the court of appeals here to choose not direct a de novo resentencing that would have been a permissible way to resolve the issue as well--

Chief Justice John G. Roberts: That would not interfere with the new judges or the judge's discretion across the board?

Roy W Mcleese Iii: --I -- I--

Chief Justice John G. Roberts: I have never had to sentence someone, but it seems to me, particularly when you have a change in the judges, there is a very personal investment in what you do with the -- the defendant, and to say that, well, another judge looked at this factor, so your hands are tied in that respect is -- is a questionable result.

Roy W Mcleese Iii: --I agree.

And I should say that the issues that we are discussing are interesting ones, but they are not the law of the case issue that is being presented here.

Because, in fact, the Eighth Circuit did order de novo resentencing, the defendant has never challenged the validity of their ordering de novo resentencing, so the only issue is what does it mean for the law of the case doctrine when de novo resentencing is ordered?

And on that question, it is very clear.

In fact, not just the Eighth Circuit but every court of appeals that we are aware of to resolve that question has said that as the name suggests when the circuit chooses, for whatever reasons, to order de novo resentencing, the -- the judge at resentencing is not bound by earlier determinations of the district court judge.

And--

Chief Justice John G. Roberts: Is there reason to suppose when they say de novo resentencing, they are talking about the mistake that was made with respect to the issue B and not issue A?

Roy W Mcleese Iii: --No, there is no reason to suppose that.

But what there is reason to suppose--

Chief Justice John G. Roberts: Do they -- is it their practice in some cases to say we are sending this back for de novo sentencing, but only with respect to the issue that we addressed, or do they just normally throw it out and say start over, without any supposition that the district court would take a look again at something that wasn't before the court of appeals at all?

Roy W Mcleese Iii: --Different circuits approach that somewhat differently, but all circuits have -- understand that they have authority to make individualized case determinations and they do.

There are cases where--

Chief Justice John G. Roberts: Could they -- are you aware of any case where the Eighth Circuit has said, we are sending this back for resentencing but only on the issue that we addressed on appeal?

Roy W Mcleese Iii: --Yes.

And the Eighth Circuit's opinions make clear that although they apply sort of a default presumption that there will be de novo resentencing, they make clear that they have authority to order limited resentencings.

And they do that where in a particular case they think it is more efficient or more appropriate.

They explained in this case, by the way, with the with respect to the suggestion you made earlier, Mr. Chief Justice, that part of the reason they thought de novo resentencing was appropriate here is because they were reassigning the matter to a different judge, and therefore, I think for some of the reasons that you were suggesting, they felt de novo review was appropriate.

But again, on the narrow law of the case issue that is presented, there is no disagreement among the courts of appeals, and as the name suggests, if there is a de novo resentencing, the matter is de novo.

If I could for just a moment turn back to the post-sentence rehabilitation issue to make one last point, which is going one level deeper into the Booker remedy analysis again, even if there were some -- excuse me.

Chief Justice John G. Roberts: Finish your sentence.

Roy W Mcleese Iii: All I was going to say was in excising the appeal provisions that were excised in Booker, the Court identified four reasons why those should be excised, and each one of them applies equally or more so with respect to the provision at issue here.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Ciongoli?

ORAL ARGUMENT OF ADAM G. CIONGOLI, AS AMICUS CURIAE, SUPPORTING JUDGMENT BELOW

Mr. Ciongoli: Mr. Chief Justice, and may it please the Court:

Congress enacted 3742(g) for the purpose of stopping district courts from evading the mandate of the court of appeals on remanding sentencing cases by relying on grounds that they did not consider at the original sentence.

Justice Sonia Sotomayor: And as far as you are concerned, Justice Alito's question about post -- post-sentencing criminal conduct couldn't be considered by a court, either?

Because it wasn't a factor mentioned in the original sentence, so you would apply the rule equally?

Mr. Ciongoli: I -- I would, Justice Sotomayor.

Justice Sonia Sotomayor: Is there any logic to that?

I mean, I know that when I was a district court judge, routinely post sentencing criminal conduct would make me wonder whether this person really was worthy of a lower sentence or not, or of whatever largesse I may have given him or her in original sentence.

What makes sense about that?

Mr. Ciongoli: Well, I think one thing that would make sense of it is there's a different mechanism.

There is an opportunity for that to be reflected in a -- in a separate criminal prosecution and a -- and a sentencing for that conduct.

When -- when the sentencing guidelines were created and when 3742(g) was passed, all of this was done against the backdrop of a sense that the sentencing guidelines were to focus on avoiding unwarranted disparities, but as the Court observed in Booker, sentencing similar -- similar sentences for similar crimes conducted in similar ways.

Justice Sonia Sotomayor: When this provision was passed, Congress was worried, I thought, about the situations where district court judges has -- were on appeal till -- you can't use this ground for departure, and often the court, because they thought the original sentence they gave was fair, would then articulate another ground for departure that they hadn't earlier.

But wouldn't that all go out the window with Booker?

I mean, the presumption that drove Congress was that the guidelines were mandatory.

Once Booker said they weren't, why should we be limiting Congress -- a judge's discretion at an issue or post hoc to giving what they believe is a reasonable sentence?

Mr. Ciongoli: Justice Sotomayor, I think the purpose of 3742(g) is to limit the ability of the district court to evade the mandate on remand in sentencing.

And I think that purpose was valid before Booker, and I think it's actually even more important after Booker.

If you are going, for example, to have meaningful opportunities for the Government to appeal.

If a district court can impose a sentence that the court of appeals then finds substantively unreasonable, and on remand the district court can then consider grounds that didn't exist at the time of the original sentencing, and, in fact, couldn't have been considered by the court of appeals because the evidence didn't exist at the time the court of appeals reviewed it.

And in this case it's uniquely in the hands of the defendant to create, then you are going to create essentially a procedural merry-go-round where a district court will impose a 24 month sentence, the Government will appeal, the court of appeals will think that is substantively unreasonable, it will be remanded to the district court and they will say, well, in the interim this person has rehabilitated them self, they have gotten a job and they've gone to school.

The Government, and I'm imposing another 24 month sentence.

These are not related to the facts of the case, but this is a different hypothetical.

The Government will then appeal again and say this is ridiculous.

The underlying conduct is extremely severe, 24 months is substantively unreasonable and they will appeal to the court of appeals.

The court of appeals will say we agree it's substantively unreasonable and we will get a remand for resentencing.

And the district court will say, well, not only has he gone to school and not only does he have a job, but he's gotten married and he has been promoted and he has been named employ of the year, so I am imposing a 24 month sentence again.

And at some point the Government is going to say, I give up, because I could keep appealing, but what's the point, it appears--

Justice Anthony Kennedy: But there are two explanations for your hypothetical.

One is there has been a real change that affects the judge.

The other is where you began, I thought you were going, where the judge is evading the court of appeals.

Those are two different things.

One may happen, one may not.

Mr. Ciongoli: --That's right, Justice Kennedy, and I think that both purposes are served by 3742(g).

3742(g) as both the Petitioner and the Government serves a constitutional purpose.

What both the Petitioner and the Government object to is the way that it's drafted.

It's not that Congress, they say, couldn't pass this, but that they couldn't pass it the way that it is passed because it makes essentially illegal references to the mandatory sentencing guidelines.

That is a product of the fact that this statute was drafted before Booker and didn't have the benefit of knowing how Booker was going to come out.

What the Court I think needs to decide is post Booker how it's going to deal with statutes like 3742(g), and there are others, which stand for an entirely constitutional and important purpose, but which necessarily, because of the time they were drafted, have references to or language that assumes the existence of a mandatory guidelines scheme.

Justice Sonia Sotomayor: How many of those statutes are left that the Court hasn't looked at?

Mr. Ciongoli: Well, I can think of at least three problems that would result from the Court saying that any reference to a mandatory guidelines scheme creates -- creates essentially a facial invalidity if it's incapable of constitutional review.

Justice Sonia Sotomayor: Which are the three?

Mr. Ciongoli: Well, first of all, 3553(a) makes two references to 3742(g).

So there's a question as how you would apply those if you strike 3742(g).

I think that 3553(c), to the extent that it requires a written statement in the context of a departure, starts to raise questions.

And as Justice Scalia points out in his dissent in Booker itself, there is a real question as to whether 3742(f) has any reason to exist after Booker.

Justice Stephen G. Breyer: But all those, what you tend to do is take the parts that refer to the other statute and say they don't do anything.

And does that ruin the provision its in, the answer I think normally is no, it doesn't ruin it at all.

It makes sense.

But this one is a tough one.

I grant you that this one is a tough one.

And my problem of course is I can think of a constitutional way of applying this, but it's a little far-fetched and the far-fetched one makes me think that it's unconstitutional in the far-fetched nature of it and I don't think it has a spillover.

The far-fetched one was the one that was brought out.

Not far-fetched, but to say in those circumstances that it is constitutional, where they are going to apply a new guideline and they don't have the evidence.

As much as I dissented in Apprendi, I think that one probably does violate Apprendi.

And I think I have to stick up for that, don't I?

Mr. Ciongoli: Justice Breyer, if you are referring to the solicitor general's hypothetical of a case in which they miscalculate the guidelines and they don't announce their reasons otherwise, I actually think there is a way to avoid the problem depending on whether the point arises before or after this case.

If it arises after this case, I think it will be very clear to the district court's that they need to be careful and thorough in articulating their reasons for reaching the sentence, which particularly in a post Booker world, I think, is a good thing.

Justice Sonia Sotomayor: Would that -- I mean -- we right now are receiving hundreds of petitions saying the court didn't sufficiently articulate its reasons.

We're going to change the practice of the district court.

I mean, dramatically.

You think that's a good thing to do?

Mr. Ciongoli: I think having a district court articulate it's reasons is a good thing.

They are supposed to do that under Congressional statute now, 3553(c), they are supposed to do that in open court very clearly and in certain circumstances they are supposed to do it -- they are supposed to do it in writing.

Justice Stephen G. Breyer: They can check a box, they can check a box and unless they are going to depart.

Now, the parts that's not necessarily to deal with later, the part that's confusing me is where this word variance comes into.

Because I think the word departure would normally, normally cover the matter.

And then when it gets to the court of appeals, the court of appeals, whether they are inside the guideline or outside the guideline and have departed, reviews the matter for, you know, inside it had departed or outside, those situations.

It says in Booker the standard is to review for reasonableness.

But where does this variance business come in?

Mr. Ciongoli: I think in the context of 3742(g) that's one of the linguistic vestiges of the guidelines, which is that up until Irizarry the Court itself used the terms variance and departure interchangeably because a variance didn't exist prior to Booker.

The Court obviously spoke to the question of whether or not it was going to equate a variance and a departure in the context of rule 32(h) in Irizarry.

I don't think actually that that distinction was essential to the holding in Irizarry and I think could be limited there.

I think particularly where the court is trying to avoid invalidating a duly enacted statute, some flexibility in terms of interpreting departure in 3742(g)(2)(B) would be warranted and you would essentially say that to the extended that a court is varying or departing, that they would need to articulate the reasons.

Justice Ruth Bader Ginsburg: It's true then that in all of the briefings in Booker, 3742(g) was not mentioned by anybody?

Mr. Ciongoli: That's correct, Justice Ginsburg.

Justice Ruth Bader Ginsburg: So it was a question of the Court overlooking it.

The Court didn't say anything one way or the other about it because it wasn't presented as one of the statutes that would have to be overruled?

Mr. Ciongoli: Justice Ginsburg, I think that obviously the Court is dealing very clearly with the constitutionality of it now.

And I think that Congress had very good reasons for enacting it that continue to be valid.

It's capable of constitutional application, I think in the mine run of cases, and in particular in this case.

There is no Sixth Amendment allegation in this case.

Justice Stephen G. Breyer: The problem, to be very specific, is I think the following: The first sentencing, the judge applies the guideline.

He says there was $300,000 stolen from the bank, I look it up over here and I get sentence X.

On appeal the appellate court says you should have counted the securities as money taken.

So it's 1,300,000.

So go and apply guideline Y.

He goes back and looks at Y, it's a very high number, and thinks given certain circumstances which make this case unusual, I want to depart downward.

Now, I would have thought that the judge's behavior in that second instance would have violated Apprendi, because that judge was either going to sentence even without the departure on the basis of him having taken some securities worth a million dollars which was not a fact that went to the jury.

There it is.

Or he has to throw aside the guideline.

But this statute says you can't throw aside the guidelines, and you can't depart for a reason that wasn't previously given.

So this statute is -- is forcing him to sentence on the basis of a fact that was not found by a jury.

I think that's the argument for saying it violates Apprendi.

And I -- I don't see why it doesn't.

Mr. Ciongoli: Justice Breyer, I -- I think that in -- in certain applications of this statute there will be problems.

I -- I think that's unavoidable and I think it's an unavoidable consequence of having been drafted before Booker.

The question is how the court is going to address that.

Is the court going to read the statute flexibly?

Is -- is it going to interpret it in a way that tries to avoid those circumstances, those constitutional problems?

Or does it ultimately determine that it is -- it is essentially not capable of a saving construction.

I think it is capable of a saving construction; I think it is capable of a saving construction in a couple of ways that avoid most of the problems that have been articulated by -- by both Petitioner and government.

The first, which actually Petitioner points out in his reply brief, is in 3742(g) itself, there is this language about "except that", that appears to limit the -- the ability of the district court to actually follow the mandate of the court of appeals.

I don't think that that can be read to limit the mandate in the court of appeals, nor do I think that anyone is suggesting that 3742(g) changes the rule in Harper v. Virginia Department of -- of Taxation, the idea that -- that district courts obviously would have to give the benefit of intervening changes in -- in law in judicial decisions; and so Booker which has been used as an example, Booker on remand would likely have been entitled to a -- a resentencing, a resentencing based on factors that the district court judge could have considered at the time of the original sentencing, but now in light of Booker, basically a do-over.

And for a -- for a small section of cases, I think that would work.

Justice Antonin Scalia: How?

Would -- would you explain as concisely as you can, why you think that (g)(2) would be unconstitutional in -- in some limited category of cases, and how that can be avoided by what you call a flexible interpretation?

Mr. Ciongoli: Justice Scalia I think I said it would be problematic; I don't think I conceded that it would be unconstitutional.

Justice Antonin Scalia: All right.

Mr. Ciongoli: I think that -- I think that there are -- there are some circumstances where, by a strict read of -- of (g)(2), the court would be required to apply the guidelines, a guidelines range.

And the example that -- that the Solicitor General's office gave might be the best, which is where you have a circumstance where the district court has imposed a sentence within the guidelines range, has not given any other reason for a variance, the sentence is at the bottom of the range which may or may not indicate that they thought that the -- that the sentence should be at the low end; and then on a -- on a calculation there is a determination that the -- on appeal there is a determination that the calculation was incorrect; and on remand the district court says, I'm -- I'm bound by this new calculation, and I'm giving you a mandatory sentence.

I'm giving you -- I'm bound by the guidelines range because I didn't give any other reasons.

I didn't give any other reasons under -- under (2)(A), and therefore I can only give you a guidelines sentence.

And in those cases the guidelines would be mandatory.

And under Booker I think there is -- there is a question as to whether a court can impose a mandatory sentence in any case after Booker.

Justice Antonin Scalia: Well, but -- I mean, why wouldn't you read that simply to have been overcome by the holding of Booker, that you apply -- that every judge has to apply 3553 factors and decide the ultimate sentence on the basis of those factors?

I mean, isn't that what Booker said, and why wouldn't you apply that to -- to (2)(A) and (B) as well?

Mr. Ciongoli: I -- I -- I certainly think the Court could take that approach, and -- and in fact I think to -- I think to -- I think it should.

I think that the Court should find a way to read or construe 3742(a) to be constitutional, because it serves an important and independent policy choice that has been identified by Congress.

Justice Ruth Bader Ginsburg: But doesn't it conflict with 3553(a)(2), that is, the overriding provision that a sentence should be sufficient but not greater than necessary to deter criminal conduct.

And the judge is looking at this defendant and says -- a criminal -- to deter criminal conduct and protect public against future crimes:

"Well, this person has turned out to be a model citizen, and we don't have to keep him in for a longer time to protect the public against future crimes. "

"So if I were to apply 3742(g)(2), I would give him a sentence that is unnecessary to protect the public against future crimes. "

Mr. Ciongoli: Justice Ginsburg, I think you are pointing out that there is some tension which I have admitted.

I think that again, this statute was drafted at a time when there was a different set of assumptions, and so there may -- there may be applications which create some difficulty.

They create more difficulty in terms of how it is applied, but they are not the kinds of difficulties that I think are insurmountable.

And they are certainly not the kinds of difficulties that support what I think is -- is a proposed broad solution by both the Petitioner and the government, that post Booker, sentencing statutes which -- which impose a mandatory guideline sentence really in any applications are facially unconstitutional.

I -- I don't read Booker that way, I don't think the Court intended it that way.

Certainly the remedial holding in Booker doesn't indicate that.

If it did -- if that is in fact what the remedial holding in Booker stands for, I think the -- the implications are more far reaching than the Court -- the Court intended.

If there are no further questions?

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Parish, you have 2 minutes remaining.

REBUTTAL ARGUMENT OF ALFREDO PARRISH ON BEHALF OF THE PETITIONER

Mr. Parrish: Thank you.

I would like to first address the law of the case issue.

Initially I said it was apples and oranges, and it is.

On two separate occasions after the 5 K ruling had been made by District Court Judge Bennett, it was appealed twice to the Eighth Circuit.

After it was appealed twice to the Eighth Circuit, they had an abuse of discretion standard they could have used to resolve it.

They did not comment on it.

They upheld it.

Then it was sent back down.

After it had come up on an original writ to this Court, this Court vacated the Eighth Circuit opinion, sent that opinion back down.

But the law of the case, as you said, Mr. Chief Justice Roberts, still remained with the district court on the initial ruling.

The initial ruling that Judge Bennett made with regard to the 5K departure was a separate ruling.

Now the Eighth Circuit in its own analysis of how you interpret its remand, we disagree with the government.

They said they -- you look at the analysis of the case to determine the remand.

And in that instance, we believe that the remand was the analysis of the case that the 5K departure remains.

No new facts came in, no new controlling law came into place, and there was no manifest in justice.

She heard no new facts on this case.

We believe the Court should reverse -- vacate the Eighth Circuit Court of opinion case regarding post-sentencing rehabilitation, remand with direction from this Court consistent with an opinion that requires the court to impose a sentence that does not exceed 24 months.

And, Justice Ginsburg, we did mention on page 33 of our brief, the 3742(g)(2) as a footnote, when the case first came up.

But the Eighth Circuit, as you all know, did not use that rule.

They used an old rule that was in effect from the Sims case to impose the sentence.

It was not part of 3742(g)(2) or any other statute.

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Ciongoli, you have briefed and argued this case as amicus curiae in support of the judgment below at the invitation of the court and have ably discharged your responsibility.

The case is submitted.

Print this transcript Transcript: 

Justice Sonia Sotomayor: In October 2003, petitioner Jason Pepper plead -- pled guilty to federal drug charges.

The United States Court of Appeals for the Eight Circuit set aside his initial sentence in light of our decision in U.S v. Booker, which invalidated certain statutory provisions that made the Federal Sentencing Guidelines mandatory.

On remand, the District Court held the resentencing hearing.

Pepper testified that while he had previously been a drug addict, he had successfully completed a drug treatment program while in prison and no longer used any drugs.

He also testified that he was enrolled in community college and had earned A's in all of his classes the prior semester, and was also working part-time.

Pepper's father testified that he had previously been strangled from his son, but the two had since reestablished their relationship.

Pepper's probation officer also testified on the positive steps Pepper had taken in becoming a law abiding citizen and has demonstrated little recidivism raise -- risk.

In light of this testimony, the District Court sentenced Pepper to 24 months.

The Court of Appeals again set aside the sentence ruling that Pepper's postsentencing rehabilitation could not be considered at resentencing and directed that the case be assigned to a difs -- different district judge.

At the second resentencing hearing, Pepper informed the new district judge that he was still in school and was now working at Sam's Club where he was recently selected "an associate of the year" and was about to be promoted.

He also testified that he had married and was supporting his new family.

The District Court however, refused to consider this evidence and sentenced Pepper to 65 months of imprisonment which was upheld by the Court of Appeals.

We grant this certiorari and now vacate that portion of the judgment below.

The Court has longed recognized that highly relevant, if not essential, to the selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.

Will -- this proposition is supported by Williams v. New York.

Congress codified this principle at 18 U.S.C. Section 3661, which provides that "no limitation shall be placed on the information", a sentencing judge can consider concerning the defendant's background, character, and conduct.

And at Section 3553, which sets forth certain factors that certain sentencing courts must consider, including "the history and characteristic of the defendant."

We hold that 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 guidelines' range.

The Eight Circuit's decision to the contrary conflicts with longstanding principles of federal sentencing law and Congress' express directives in Sections 3661, and 3553(a).

Although a separate statutory provision, Section 3742(g)(2) would effectively preclude the consideration of postsentencing rehabilitation.

That provision did not survive our holding in Booker and we expressly invalidate it today.

Separately, we affirm the Court of Appeals' ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at Pepper's prior sentencing.

The judgment of the United States Court of Appeals for the Eight Circuit is vacated in part and affirmed in part.

And the case is remanded for resentencing consistent with this opinion.

Justice Breyer has filed an opinion concurring in part and concurring in the judgment.

Justice Alito has filed an opinion concurring a part -- in part, concurring in the judgment in part and dissenting in part.

Justice Thomas has filed this dissenting opinion.

Justice Kagan took no part in the consideration or decision of this case.