By Burt Rose
The SUPREME COURT OF THE UNITED STATES has decided the case of JASON PEPPER, PETITIONER v.
UNITED STATES, No. 09–6822 (3/2/11).
Justice Sotmayor wrote the Opinion, joined by Justices Roberts, SCALIA, KENNEDY, and GINSBURG. Justices BREYER and ALITO joined in part. Justice THOMAS filed a dissenting opinion. Justice KAGAN took no part in the consideration or decision of the case.
The Court held that when a defendant’s sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant’s postsentencing rehabilitation, and such evidence may, in appropriate cases, support a downward variance from the advisory guidelines range. 18 USC §3742(g)(2), which prohibits a district court at resentencing from imposing a sentence outside the Sentencing Guidelines range except upon a ground it relied upon at the prior sentencing, was invalidated by the Court as being unconstitutional. Nor does the law require a sentencing court to follow a Guideline policy statement that forbids taking account of postsentencing rehabilitation: see Guidelines Manual §5K2.19.
Thus a District Court, when resentencing petitioner after his initial sentence has been set aside on appeal, may consider evidence of petitioner’s rehabilitation since his initial sentencing for a downward variance.
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