Pepper v. United States ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
PEPPER v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
No. 09–6822. Argued December 6, 2010—Decided March 2, 2011
After pleading guilty to drug charges, petitioner Pepper was sentenced
under the Federal Sentencing Guidelines to 24 months’ imprison
ment, a nearly 75 percent downward departure from the low end of
the Guidelines range based in part on his substantial assistance, fol
lowed by five years of supervised release. In Pepper I, the Eighth
Circuit reversed and remanded for resentencing in light of, inter alia,
United States v. Booker, 543 U. S. 220. Pepper, who had begun serv
ing his supervised release, testified at his resentencing hearing that
he was no longer a drug addict, having completed a 500-hour drug
treatment program while in prison; that he was enrolled in commu
nity college and had achieved very good grades; and that he was
working part time. Pepper’s father testified that he and his son were
no longer estranged, and Pepper’s probation officer testified that a
24-month sentence would be reasonable in light of Pepper’s substan
tial assistance, postsentencing rehabilitation, and demonstrated low
recidivism risk. The District Court again sentenced Pepper to 24
months, granting a 40 percent downward departure based on Pep
per’s substantial assistance and a further downward variance based
on, inter alia, Pepper’s rehabilitation since his initial sentencing. In
Pepper II, the Eighth Circuit again reversed and remanded for resen
tencing, concluding that Pepper’s postsentencing rehabilitation could
not be considered as a factor supporting a downward variance, and
directing that the case be assigned to a different district judge. After
this Court vacated and remanded the Pepper II judgment in light of
Gall v. United States, 552 U. S. 38, the Eighth Circuit, in Pepper III,
reversed and remanded once more. At the second resentencing hear
ing, Pepper informed the new district judge that he was still in
school, was about to be promoted at his job, and had married and was
2 PEPPER v. UNITED STATES
Syllabus
supporting his new family. Noting the nearly identical remand lan
guage of Pepper II and Pepper III, the court observed that it was not
bound to reduce Pepper’s range by 40 percent for substantial assis
tance. Instead, it found him entitled to a 20 percent reduction and
refused to grant a further downward variance for, inter alia, postsen
tencing rehabilitation. It imposed a 65-month prison term and 12
months of supervised release. In Pepper IV, the Eighth Circuit once
again rejected Pepper’s postsentencing rehabilitation argument. It
also rejected his claim that the law of the case from Pepper II and
Pepper III required the District Court to reduce the applicable Guide
lines range by at least 40 percent.
Held:
1. When a defendant’s sentence has been set aside on appeal, a dis
trict 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 now-advisory Guide
lines range. Pp. 9–27.
(a) Consistent with the principle that “the punishment should fit
the offender and not merely the crime,” Williams v. New York, 337
U. S. 241, 247, this Court has observed a consistent and uniform pol
icy “under which a sentencing judge could exercise a wide discretion
in the sources and types of evidence used to assist him in determin
ing the kind and extent of punishment to be imposed within limits
fixed by law,” id., at 246, particularly “the fullest information possi
ble concerning the defendant’s life and characteristics,” id., at 247.
That principle is codified at 18 U. S. C. §3661, which provides that
“[n]o limitation shall be placed on the information” a sentencing court
may consider “concerning the [defendant’s] background, character,
and conduct,” and at §3553(a), which specifies that sentencing courts
must consider, among other things, a defendant’s “history and char
acteristics,” §3553(a)(1). The Guidelines, which Booker made “effec
tively advisory,” 543 U. S., at 245, “should be the starting point and
the initial benchmark,” but district courts may impose sentences
within statutory limits based on appropriate consideration of all of
the §3553(a) factors, subject to appellate review for “reasonableness,”
Gall v. United States, 552 U. S. 38, 49–51. This sentencing frame
work applies both at initial sentencing and at any subsequent resen
tencing after a sentence has been set aside on appeal. Pp. 9–12.
(b) Postsentencing rehabilitation evidence may support a down
ward variance from the advisory Guidelines range. The plain lan
guage of §3661 makes clear that there is “[n]o limitation . . . on . . .
background, character, and conduct” information, and it makes no
distinction between an initial sentencing and a subsequent resen
tencing. In addition, postsentencing rehabilitation evidence may be
Cite as: 562 U. S. ____ (2011) 3
Syllabus
highly relevant to several §3553(a) factors that district courts are re
quired to consider at sentencing. The extensive evidence of Pepper’s
rehabilitation since his initial sentencing is clearly relevant to the se
lection of an appropriate sentence here. Most fundamentally, that
evidence provides the most up-to-date picture of his “history and
characteristics.” §3553(a)(1). At the time of his initial sentencing, he
was an unemployed drug addict who was estranged from his family
and sold drugs. By his second resentencing, he had been drug-free
for nearly five years, was attending college, was a top employee
slated for promotion, had re-established a relationship with his fa
ther, and was married and supporting a family. His postsentencing
conduct also sheds light on the likelihood that he will engage in fu
ture criminal conduct, a central factor that sentencing courts must
consider. See §§3553(a)(2)(B)–(C). Pp. 12–15.
(c) The contrary arguments advanced by amicus appointed to de
fend the judgment are unpersuasive. Pp. 15–26.
(1) While §3742(g)(2)—which prohibits a district court at re
sentencing from imposing a sentence outside the Guidelines range
except upon a ground it relied upon at the prior sentencing—
effectively precludes a court from considering postsentencing reha
bilitation, that provision is invalid after Booker. Like the provisions
invalidated in Booker—§§3553(b)(1) and 3742(e)—§3742(g)(2) re
quires district courts effectively to treat the Guidelines as mandatory
in an entire set of cases. Thus, the proper remedy is to invalidate the
provision. While applying §3742(g)(2) at resentencing would not al
ways result in a Sixth Amendment violation, this Court rejects a par
tial invalidation that would leave the Guidelines effectively manda
tory in some cases and advisory in others. The fact that §3742(g)(2)
permits a resentencing court on remand to impose a non-Guidelines
sentence where the prior sentence expressly relied on a departure
upheld by the court of appeals also does not cure the constitutional
infirmity. And the argument that any constitutional infirmity in
§3742(g)(2) can be remedied by invalidating §3742(j)(1)(B) is rejected.
Pp. 15–20.
(2) This Court finds unpersuasive amicus’ arguments focusing
on Congress’ sentencing objectives under §3553(a). Contrary to
amicus’ contention, §3742(g)(2) does not reflect a congressional pur
pose to preclude consideration of postsentencing rehabilitation evi
dence. Thus, that provision has no bearing on this Court’s analysis of
whether §3553(a) permits consideration of such evidence. Nor is the
consideration of postsentencing rehabilitation inconsistent with the
sentencing factor in §3553(a)(5)—which directs sentencing courts to
consider “any pertinent policy statement” of the Sentencing Commis
sion—particularly as the pertinent policy statement in this case is
4 PEPPER v. UNITED STATES
Syllabus
based on unconvincing policy rationales not reflected in the relevant
sentencing statutes. Consideration of postsentencing rehabilitation
is also not inconsistent with §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”—as any disparity arises only from the normal trial
and sentencing process. 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). Pp. 21–26.
(d) On remand, the District Court should consider and give ap
propriate weight to the postsentencing rehabilitation evidence, as
well as any additional evidence concerning Pepper’s conduct since his
last sentencing. Pp. 26–27.
2. Because the Eighth Circuit in Pepper III set aside Pepper’s en
tire sentence and remanded for de novo resentencing, the District
Court was not bound by the law of the case doctrine to apply the
same 40 percent departure applied by the original sentencing judge.
To avoid undermining a district court’s original sentencing intent, an
appellate court when reversing one part of a sentence “may vacate
the entire sentence . . . so that, on remand, the trial court can recon
figure the sentencing plan . . . to satisfy [§3553(a)’s] sentencing fac
tors.” Greenlaw v. United States, 554 U. S. 237, 253. That is what
the Eighth Circuit did here. Pp. 27–30.
570 F. 3d 958, vacated in part, affirmed in part, and remanded.
SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, and GINSBURG, JJ., joined, and in which
BREYER and ALITO, JJ., joined as to Part III. BREYER, J., filed an opin
ion concurring in part and concurring in the judgment. ALITO, J., filed
an opinion concurring in part, concurring in the judgment in part, and
dissenting in part. THOMAS, J., filed a dissenting opinion. KAGAN, J.,
took no part in the consideration or decision of the case.
Cite as: 562 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
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 appro
priate sentence is the possession of the fullest information
possible concerning the defendant’s life and characteris
tics.” 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 “con
cerning the [defendant’s] background, character, and con
duct,” and at §3553(a), which sets forth certain factors
that sentencing courts must consider, including “the his
tory 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 resen
tencing 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
2 PEPPER v. UNITED STATES
Opinion of the Court
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 pur
poses of imposing a non-Guidelines sentence—that provi
sion 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 reha
bilitation and that such evidence may, in appropriate
cases, support a downward variance from the now
advisory Federal Sentencing Guidelines range. Sepa
rately, 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.1 The Government moved for a downward depar
——————
1 Although the charge to which Pepper pleaded guilty carried a man
datory minimum of 120 months’ imprisonment, the mandatory mini
mum 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).
Cite as: 562 U. S. ____ (2011) 3
Opinion of the Court
ture pursuant to USSG §5K1.1 based on Pepper’s substan
tial assistance and recommended a 15 percent downward
departure.2 The District Court, however, sentenced Pep
per to a 24-month prison term, resulting in an approxi
mately 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 resentenc
ing hearing and heard from three witnesses. In his testi
mony, 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 at
tending 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 ar
rest. See id., at 111 (“[M]y life was basically headed to
——————
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.
4 PEPPER v. UNITED STATES
Opinion of the Court
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 some
where 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 rehabilita
tion, and demonstrated low risk of recidivism. Id., at 126–
131. The probation officer also prepared a sentencing
memorandum that further set forth the reasons support
ing 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 offi
cer’s sentencing memorandum. The court granted a 40
percent downward departure based on Pepper’s substan
tial 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
143–148.3 The court sentenced Pepper to 24 months of
imprisonment, concluding that “it would [not] advance any
——————
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.
Cite as: 562 U. S. ____ (2011) 5
Opinion of the Court
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.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 [Pep
——————
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.
6 PEPPER v. UNITED STATES
Opinion of the Court
per’s] advisory Sentencing Guidelines range by 40% pur
suant 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 down
ward 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 “associ
ate of the year” and was likely to be promoted the follow
ing 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 sentenc
ing 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 impor
tant” but “in no way extraordinary.” Sealed Sentencing
Cite as: 562 U. S. ____ (2011) 7
Opinion of the Court
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 postsentenc
ing 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 Proce
dure to account for investigative assistance Pepper pro
vided after he was initially sentenced. The court imposed
a 65-month term of imprisonment, to be followed by 12
months of supervised release.5
The Court of Appeals affirmed Pepper’s 65-month sen
tence. 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 follow
ing 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 rehabilita
tion 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
——————
5 After the District Court resentenced Pepper to 65 months’ impris
onment, 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.
8 PEPPER v. UNITED STATES
Opinion of the Court
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 “gen
eral 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 appel
late court become law of the case on remand to the sen
tencing 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;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
——————
6 Compare, e.g., United States v. Lorenzo, 471 F. 3d 1219, 1221 (CA11
2006) (per curiam) (precluding consideration of postsentencing rehabili
tative 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 excep
tional 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”).
Cite as: 562 U. S. ____ (2011) 9
Opinion of the Court
defend the Court of Appeals’ judgment.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 con
victed 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 pun
ishment 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 deter
mination of sentences, justice generally requires consid
eration 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 charac
ter 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 pun
ishment to be imposed within limits fixed by law.” Wil
liams, 337 U. S., at 246. In particular, we have empha
sized 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
——————
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.
10 PEPPER v. UNITED STATES
Opinion of the Court
life and characteristics.” Id., at 247. Permitting sentenc
ing courts to consider the widest possible breadth of
information about a defendant “ensures that the punish
ment 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 con
cerning 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 pur
pose 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, with
out limitation, any information concerning the back
ground, 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 sentenc
ing courts to “conduct an inquiry broad in scope, largely
Cite as: 562 U. S. ____ (2011) 11
Opinion of the Court
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).8
The SRA did constrain sentencing courts’ discretion in
important respects, most notably by making the Guide
lines 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
——————
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”).
12 PEPPER v. UNITED STATES
Opinion of the Court
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 infor
mation concerning the background, character, and con
duct” of a defendant that a district court may “receive and
consider for the purpose of imposing an appropriate sen
tence.” 18 U. S. C. §3661. The plain language of §3661
makes no distinction between a defendant’s initial sen
tencing and a subsequent resentencing after a prior sen
tence 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 consid
eration 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
Cite as: 562 U. S. ____ (2011) 13
Opinion of the Court
that Congress has expressly instructed district courts to
consider at sentencing. For example, evidence of postsen
tencing 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 sen
tencing 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 train
ing . . . 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 criti
cally 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 exten
sive evidence of Pepper’s rehabilitation since his initial
sentencing is clearly relevant to the selection of an appro
priate sentence in this case. Most fundamentally, evi
dence 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
14 PEPPER v. UNITED STATES
Opinion of the Court
nearly five years, had attended college and achieved high
grades, was a top employee at his job slated for a promo
tion, 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 impos
ing 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 Pep
per’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 postsentenc
ing 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 over
arching duty to “impose a sentence sufficient, but not
greater than necessary” to serve the purposes of sentenc
ing. §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
Cite as: 562 U. S. ____ (2011) 15
Opinion of the Court
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 resentenc
ing court on remand to impose a non-Guidelines sentence,
effectively forecloses consideration of a defendant’s post
sentencing 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 dis
trict court on remand by precluding the court from impos
ing 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 prac
tical matter, such evidence did not exist at the time of the
16 PEPPER v. UNITED STATES
Opinion of the Court
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,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 provi
sions 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 manda
tory application of the Guidelines would not always result
in a Sixth Amendment violation.10 Indeed, although the
——————
9 See 18 U. S. C. §3553(b)(1) (2000 ed., Supp. IV) (permitting depar
tures where the judge “finds that there exists an aggravating or miti
gating circumstance of a kind, or to a degree, not adequately taken into
consideration by the Sentencing Commission”).
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.
Cite as: 562 U. S. ____ (2011) 17
Opinion of the Court
Government suggested in Booker that we render the
Guidelines advisory only in cases in which the Constitu
tion 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 incom
plete remedy we rejected in Booker would have required
courts to treat the Guidelines differently in similar pro
ceedings, leading potentially to unfair results and consid
erable administrative challenges”).
We did not expressly mention §3742(g)(2) in Booker,11
but the rationale we set forth in that opinion for invalidat
ing §§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 “out
side 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 manda
tory. 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 ver
dict (or guilty plea), requiring a sentencing judge on re
——————
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”).
18 PEPPER v. UNITED STATES
Opinion of the Court
mand 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 invali
date §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 in
creased 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) re
mained valid after Booker, the district court on remand
would have been required to sentence within the Guide
lines 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 misunderstand
ing of its authority to depart under or vary from the
Guidelines.” Reply Brief for United States 16. For exam
ple, if §3742(g)(2) remained valid, there would be no rem
edy 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 circum
stances, see Gall, 552 U. S., at 47, or if it incorrectly con
cluded 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
Cite as: 562 U. S. ____ (2011) 19
Opinion of the Court
101. In such cases, the district court at the initial sentenc
ing 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 re
mand. 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 ren
der the sentence constitutionally infirm. But, as explained
above, that possibility was equally true with respect to the
sentencing provisions we invalidated in Booker. See su
pra, 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 depar
ture 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 reme
dying the Sixth Amendment problem required invalidation
of §3553(b)(1). That same remedial approach requires us
20 PEPPER v. UNITED STATES
Opinion of the Court
to invalidate §3742(g)(2).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 Sup
port 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, “author
ized 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 constitu
tional defect of §3742(g)(2).
——————
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 Guide
lines 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.
Cite as: 562 U. S. ____ (2011) 21
Opinion of the Court
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 constitution
ally 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 resentenc
ing. To be sure, §3742(g)(2) has the incidental effect of
limiting the weight a sentencing court may place on post
sentencing 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 cir
cumstances, §3742(g)(2) does not restrict a district court at
all, much less with respect to consideration of postsentenc
ing developments. Accordingly, because we see no general
congressional policy reflected in §3742(g)(2) to preclude
resentencing courts from considering postsentencing
information,13 that provision has no bearing on our analy
——————
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
22 PEPPER v. UNITED STATES
Opinion of the Court
sis 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 in
structed district courts to consider. See supra, at 13–15
(discussing §§3553(a), (a)(1), (a)(2)(B)–(D)). Amicus, how
ever, 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 Com
mission, 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 Sen
tencing 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 of
fense.” According to amicus, that policy statement is
“clear and unequivocal,” and as an exercise of the Sentenc
ing Commission’s “core function,” should be given effect.
——————
PROTECT Act of 2003, §401(e), 117 Stat. 671, was not aimed at prohib
iting district courts from considering postsentencing developments.
Rather, it was meant to ensure that under the then-mandatory Guide
lines 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 depar
ture 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.Cite as: 562 U. S. ____ (2011) 23
Opinion of the Court
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, how
ever, 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 sentenc
ing statutes Congress enacted.
The commentary to USSG §5K2.19 expresses the Com
mission’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) [gov
erning 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 oppor
tunity to be resentenced de novo.” With regard to the first
proffered rationale, a sentencing reduction based on post
sentencing rehabilitation can hardly be said to be “incon
sistent with the policies” underlying an award of good time
credit under §3624(b) because the two serve distinctly
different penological interests.14 Indeed, the difference
——————
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 admin
istrative reward “to provide an incentive for prisoners to ‘compl[y] with
24 PEPPER v. UNITED STATES
Opinion of the Court
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.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 sen
tencing practices, but because of the ordinary operation of
appellate sentencing review.
In a closely related vein, amicus argues that considera
tion of postsentencing rehabilitation is inconsistent with
§3553(a)(6), which requires sentencing courts to consider
the need to avoid unwarranted sentencing disparities.
——————
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).
15 Amicus points to two other procedural mechanisms that may
shorten a defendant’s sentence—early termination of a term of super
vised release, see §3583(e)(1), and the potential for sentencing reduc
tions 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. Super
vised 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 incarcera
tion”). 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).
Cite as: 562 U. S. ____ (2011) 25
Opinion of the Court
The Court of Appeals also rested its holding on this
ground, reasoning that “ ‘allowing [postsentencing reha
bilitation] 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.16 The differences in procedural opportunity that
may result because some defendants are inevitably sen
tenced 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 convic
tions 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 cate
——————
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 rehabili
tation. 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”).
26 PEPPER v. UNITED STATES
Opinion of the Court
gorically to ignore not only postsentencing rehabilitation,
but any postsentencing information, including, for exam
ple, evidence that a defendant had committed postsentenc
ing 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 ap
proach as it permits district courts to consider postsen
tencing 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 defen
dant’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 postsentenc
ing rehabilitation after his initial sentence was set aside
Cite as: 562 U. S. ____ (2011) 27
Opinion of the Court
on appeal. District courts post-Booker may consider evi
dence of a defendant’s postsentencing rehabilitation at
resentencing and such evidence may, in appropriate cases,
support a downward variance from the advisory Guide
lines range.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 reha
bilitation 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 judg
ment 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
——————
17 Of course, we do not mean to imply that a district court must re
duce 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).
28 PEPPER v. UNITED STATES
Opinion of the Court
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 origi
nal 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 resentenc
ing, and thus has abandoned any argument that the man
date itself restricted the District Court from imposing a
different substantial assistance departure.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 down
ward 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
——————
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.
Cite as: 562 U. S. ____ (2011) 29
Opinion of the Court
issues in subsequent stages in the same case.” Arizona v.
California, 460 U. S. 605, 618 (1983). This doctrine “di
rects 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 per
cent 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 pack
age of sanctions that the district court utilizes to effectu
ate its sentencing intent.” United States v. Stinson, 97
F. 3d 466, 469 (CA11 1996) (per curiam). Because a dis
trict court’s “original sentencing intent may be under
mined by altering one portion of the calculus,” United
States v. White, 406 F. 3d 827, 832 (CA7 2005), an appel
late court when reversing one part of a defendant’s sen
tence “may vacate the entire sentence . . . so that, on
30 PEPPER v. UNITED STATES
Opinion of the Court
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 re
manded for resentencing consistent with this opinion.
It is so ordered.
JUSTICE KAGAN took no part in the consideration or deci
sion of this case.
Cite as: 562 U. S. ____ (2011) 1
Opinion of BREYER, J.
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 rehabilita
tion. 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 Guide
lines 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.
2 PEPPER v. UNITED STATES
Opinion of BREYER, J.
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 sen
tence 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 Guide
lines’ general approach to departures). The policy state
ment 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 excep
tional, . . . are not an appropriate basis for a downward
departure when resentencing.” USSG §5K2.19. The
policy statement thereby adds “Post-Sentencing Rehabili
tative Efforts” to such factors as race, sex, national origin,
creed, religion, and socioeconomic status, which the Guide
lines 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 par
ticular 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 back
ground, character, and conduct’ ” that “ ‘a court . . . may . . .
consider.’ ” Ante, at 10 (quoting 18 U. S. C. §3661 (empha
sis 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
Cite as: 562 U. S. ____ (2011) 3
Opinion of BREYER, J.
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 tradi
tion. A just legal system seeks not only to treat different
cases differently but also to treat like cases alike. Fair
ness 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 writ
ten by a Sentencing Commission, which Congress in
tended the courts to follow. See Mistretta v. United States,
488 U. S. 361 (1989) (Sentencing Commission constitu
tional); 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 be
cause 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 indi
vidual offender. 337 U. S., at 247 (emphasizing “modern
concepts individualizing punishment”). But Congress,
4 PEPPER v. UNITED STATES
Opinion of BREYER, J.
concerned that individualized sentencing had gone too far,
wrote a new sentencing law designed to help correct “dis
parities” 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 pub
lic”); 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 imple
menting 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 Amend
ment 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 stat
utes 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.Cite as: 562 U. S. ____ (2011) 5
Opinion of BREYER, J.
Booker made clear that the remaining statutory provi
sions, 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 Guide
lines 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 stan
dard[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 cir
cumstances—both on review of departures . . . and on
review of sentences imposed where there was no applica
ble 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 deci
sions 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 Guide
lines, 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 Sen
tencing 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,
6 PEPPER v. UNITED STATES
Opinion of BREYER, J.
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 ac
count of a (resentenced) offender’s postsentencing rehabili
tation—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
Cite as: 562 U. S. ____ (2011) 7
Opinion of BREYER, J.
reason (reflecting good behavior while the case is on ap
peal) 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 resen
tencing 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 major
ity, I find this justification for the policy statement uncon
vincing. 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 circum
stances. 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 daugh
ter.” Ante, at 14. These are case-specific facts and cir
cumstances, 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,
8 PEPPER v. UNITED STATES
Opinion of BREYER, J.
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 cir
cumstances that place the case outside a specific Guide
line’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 Guide
lines are to further the statutes’ basic objective, namely
greater sentencing uniformity, while also taking account
of special individual circumstances, primarily by permit
ting 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 Commis
sion can revise the Guidelines accordingly. See USSG ch.
1, pt. A1, §3. Trial courts, appellate courts, and the Com
mission 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.
Cite as: 562 U. S. ____ (2011) 1
Opinion of ALITO, J.
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 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 manda
tory 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 provi
sion 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 postsentenc
ing 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
2 PEPPER v. UNITED STATES
Opinion of ALITO, J.
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 Guide
lines 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 re
quired 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 discretion
ary 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.*
——————
* Insofar as 18 U. S. C. §3661 permitted a sentencing judge to con
sider 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
Cite as: 562 U. S. ____ (2011) 3
Opinion of ALITO, J.
By the time of the enactment of the Sentencing Reform
Act in 1984, this scheme had fallen into widespread disre
pute. See, e.g., Mistretta v. United States, 488 U. S. 361,
366 (1989) (noting “[f]undamental and widespread dissat
isfaction 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. Mis
souri, 451 U. S. 430, 444, n. 16 (1981) (“There has been no
attempt to separate policymaking from individual sentenc
ing 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.
——————
statement,” 18 U. S. C. §3553(a)(5).
Cite as: 562 U. S. ____ (2011) 1
THOMAS, J., dissenting
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 postsen
tencing rehabilitation.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) (THO-
MAS, 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
——————
1 I agree with the Court that the law of the case doctrine did not con
trol Pepper’s resentencing. See ante, at 29–31.
2 PEPPER v. UNITED STATES
THOMAS, J., dissenting
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 refer
ence to facts found by the jury or admitted by the defen
dant.” 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).2 United States v. Pepper,
412 F. 3d 995, 996 (CA8 2005). Because Pepper has ad
mitted facts that would support a much longer sentence
than the 65 months he received, there is no Sixth Amend
ment problem in this case.
Under a mandatory Guidelines regime, Pepper’s sen
tence was proper. The District Court correctly calculated
the Guidelines range, incorporated a USSG §5K1.1 depar
ture 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 down
ward 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 major
ity, 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 addic
——————
2 Pepper also stated that he understood both the 10-year statutory
minimum and that the Government was making no promises about any
exceptions.
Cite as: 562 U. S. ____ (2011) 3
THOMAS, J., dissenting
tion 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 con
strained to apply those provisions unless the Constitution
prohibits me from doing so, and it does not here.