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Federal Criminal Defendants Continue to Win in Supreme Court Cases Involving the Sentencing Guidelines

Kish Law LLC

We represent a lot of criminal defendants in federal courts, many here in Atlanta but also throughout Georgia, Alabama, Tennessee, Florida and other states. Since 2005, such criminal defendants have had good luck in the United States Supreme Court when challenging various aspects of the Federal Sentencing Guidelines. One more such success took place on March 2, 2011 when the Supreme Court issued its opinion in Pepper v. United States.

Readers will recall that like most criminal defense attorneys who specialize in federal cases, I have railed against the Sentencing Guidelines since their inception in 1987. These mechanical rules turned judges into soulless automatons, who were reduced to calculating various complex formulae when imposing a prison sentence on the human being standing in court. In 2005, the famous Booker decision held that the Guidelines are unconstitutional, and the only way to “save” them was to hold that these rules are no longer mandatory, but are merely “advisory.” After Booker, judges began using their new-found freedom to impose shorter sentences than otherwise called for by the Guidelines. In a series of cases in the ensuing years, the Supreme Court ruled that a judge who gives a below-Guidelines sentence should be afforded great deference, and sentencing judges could even impose lower sentences based on policy disagreements with particular aspects of the Guidelines.

Then came Mr. Pepper’s case. His judge used this new sentencing freedom to impose a 24-month sentence, far below what the Guidelines called for. The prosecutors appealed, and the Eighth Circuit agreed with them, sending the matter back for a new sentencing hearing. Along the way, Mr. Pepper had completed a lengthy drug treatment program, and got out from the 24-month sentence 3 days after the case was sent back for a new sentencing hearing.

Again, the judge imposed 24 months. This time, the judge looked at how well Mr. Pepper had fared since the first sentencing hearing. The judge noted how Pepper had truly rehabilitated himself, was in college, and had re-established ties with his family. Again, the prosecutors appealed, arguing that such “post-sentencing rehabilitation” could not support a lower sentence. Once again, the Eighth Circuit agreed with the government, sending the case back for a third hearing, and this time snatching the case away from the reasonable judge who had imposed the 24 month term. At the third sentencing hearing, this new judge imposed 65 months and made Mr. Pepper go back to prison. Mr. Pepper’s lawyers asked the Supreme Court to look at his case, and he was released from the new sentence when they agreed to review the matter.

In its March 2, 2011 decision, the Supreme Court soundly rebuked the Eighth Circuit. In an opinion written by Justice Sotomayor, the Court noted that there generally are no limits on what a sentencing judge can consider, and post-sentence rehabilitation is clearly a factor that can justify a lower sentence. Along the way, the Supreme Court also chided the U.S. Sentencing Commission for a rule it had created that supposedly prohibited judges from using such post-sentencing efforts to justify lower sentences.

The Pepper decision is one more case showing how federal criminal sentencing has changed. When we stand with our clients, the Guidelines are merely “advisory”. A judge is duty-bound to impose a sentence for that person, not just a sentence that is spit out after a complex formula created by a “commission”. We have returned to the time when a lawyer can make arguments about his or her client’s personal situation. We like representing people, so this trend makes our jobs easier and more enjoyable.

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