562 U.S. 476 | SCOTUS | 2011
Lead Opinion
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 conduct,” 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 sentencing 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 im
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.
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 that 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
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.
The Government again appealed Pepper’s sentence, and the Court of Appeals again reversed and remanded for re-sentencing. 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,
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). 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
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), Record, 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
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 postsen-teneing 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 re-sentencing.” 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.
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
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 “[hjighly 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 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
“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 (Nov. 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).
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
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 resen-tenee a defendant in accordance with section 3553”); see also Dillon v. United States, 560 U. S. 817, 828, 827 (2010) (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 oh appeal and his case remanded for resen-tencing, 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
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 farther crimes of the defendant,” and “provide the defendant with needed educational or vocational training ... or other correctional treatment in the most effective 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 sen-
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 vocational 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
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 postsentenc-ing 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.”
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 489-490. We recognized in Booker that, although the SRA permitted departures from the applicable Guidelines range in limited circumstances,
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)
We did not expressly mention § 3742(g)(2) in Booker,
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 re-sentencing if a district court erroneously believed the Guidelines were presumptively reasonable, see Nelson v. United States, 555 U. S. 350, 352 (2009) (per curiam), or if it mistak
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 495. 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 consti
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 SEA 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
2
Amicus’ next cluster of arguments focuses on Congress’ sentencing objectives under § 3553(a). Preliminarily, ami-cus 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 post-sentencing 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
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 491-493 (discussing §§ 3553(a), (a)(1), (a)(2)(B)-(D)). Amicus, however, argues that consideration of postsentencing rehabilitation 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 sentencing] 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-senteneing 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 resentenc-ing the defendant for that offense.” According to amicus, that policy statement is “clear and unequivocal,” and as an
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.
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, rea-
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
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
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.
Ill
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-pereent 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
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.
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
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
* * Hí
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.
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. § 3558(f) (2000 ed.) and §5C1.2 of the United States Sentencing Commission, Guidelines Manual (Nov. 2003) (USSG).
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.
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.
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.
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.
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”).
We appointed Adam G. Ciongoli to brief and argue the ease, as amicus curiae, in support of the Court of Appeals’ judgment. 561 U. S. 1042 (2010). Mr. Ciongoli has ably discharged his assigned responsibilities.
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”).
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”).
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.
See Dillon, 560 U. S., at 839, n. 5 (Stevens, J., dissenting) (citing 13742(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”).
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 11 (emphasis added). In Irizarry v. United States, 553 U. S. 708 (2008), we held that a “ ‘[departure’ 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.
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.” United States v. Booker, 543 U. S. 220, 261 (2005). As we recognized in Booker, that purpose has “ceased to be relevant.” Ibid.
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. 474,
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 post-sentencing 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 postsen-tencing 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).
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) C‘[D]epartures based on extraordinary post-offense rehabilitative efforts prior to sentencing ... have been allowed by every circuit that has ruled on the matter”).
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).
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.
Concurrence Opinion
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. § 8742(g)(2) unconstitutional. See ante, at 493-499; 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 Guidelines 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
I
The Guideline in question consists of a policy statement that sets forth an exception to normal Guidelines 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. Al, § 4(b) (discussing the Guidelines’ general approach to departures). The policy statement at issue is one of a handful of Guidelines 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 resentenc-ing.” §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. Id., ch. 1, pt. Al, § 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 488 (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
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 487 (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 eases 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
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”
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
Ill
Unlike the majority, I would decide the question Kimbrough left open. And I would follow its suggested framework for evaluating “reasonableness.” As Kimbrough 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 Guidelines 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 Guidelines policy statement itself runs counter to ordinary Guidelines sentencing policy, which rarely forbids departures and then for very strong policy reasons. Supra, at 509. See USSG ch. 1, pt. Al, § 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,
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 500-502.
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 resentenc-ing 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 492. 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 rea
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. Al, § 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., ch. 1, pt. A. I would interpret the statutes before us accordingly.
Concurrence in Part
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
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 Kimbrough, supra, 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. 508 (opinion concur
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.
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 § 3661 permitted a sentencing judge to consider evidence of postsenteneing 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).
Dissenting Opinion
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.
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).
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 491-493. 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
I agree with the Court that the law of the case doctrine did not control Pepper’s resentencing. See ante, at 505-508.
Pepper also stated that he understood both the 10-year statutory minimum and that the Government was making no promises about any exceptions.
