Argument recap: Justices struggle with rules for resentencing after Booker

Pepper v. United States (No. 09-6822) requires the Court to further sort through the implications and consequences of its landmark ruling in United States v. Booker (2005).  Booker made the federal Sentencing Guidelines “effectively advisory” after ruling that judicial fact-finding within a mandatory guidelines system was unconstitutional, and follow-up rulings have stressed that district judges now possess broad discretion to consider a range of facts and factors at initial sentencing.  Pepper raises two issues concerning the scope and limits of a district judge’s discretion at resentencing:  (1) whether a new judge must under the “law of the case” doctrine follow undisturbed sentencing findings by the original judge, and (2) whether a judge may consider a defendant’s post-sentencing rehabilitation as a mitigating factor under federal sentencing laws.

In the first question asked of Alfredo Parrish, arguing on behalf of petitioner Jason Pepper, Chief Justice Roberts suggested there was “tension” in the defendant’s arguments because he urges that a new judge must be bound at resentencing by certain (pro-defendant) rulings made at initial sentencing, but also urges that a judge have discretion to consider post-sentencing developments that might justify a further sentence reduction for a defendant.  Though Parrish claimed these issues “are like apples and oranges,” the Chief Justice’s question spotlighted an easy means for the Court to resolve Pepper: the Justices could declare that the broad post-Booker sentencing discretion afforded to district judges extends fully to all aspects of resentencing proceedings.

The United States urged the Justice not to impose limits on resentencing considerations.  Acting Deputy Solicitor General Roy McLeese argued the Eighth Circuit was wrong to restrict consideration of post-sentencing rehabilitation, but he also argued that the “law of the case” doctrine should not restrict resentencing considerations whenever a circuit court calls for de novo resentencing on remand.  Justice Alito pressed concerns about the unfairness that could result when one defendant gets to benefit at a resentencing from post-sentencing rehabilitation, when another similar defendant whose sentence is affirmed on appeal will not so benefit from identical rehabilitation.  McLeese conceded that there will be “differences of opportunity, where one defendant [gets a] resentenc[ing] and new information will be considered as to that defendant [while] a similarly situated defendant will not get a resentencing.”  But, he stressed, this will not always unfairly benefit the resentenced defendant because there may be new aggravating factors that can and should impact the resentencing proceeding.

Arguing for more limited resentencing proceedings, Adam Ciongoli – who was appointed by the Court to brief and argue the case as an amicus in support of the judgment below – defended the Eighth Circuit’s limit on post-sentencing rehabilitation issue by stressing the provisions of 18 U.S.C. §3742(g)(2), in which Congress sought to prohibit district courts at resentencing from imposing a lower sentence based on grounds that were “not specifically and affirmatively” included in the original statement of sentencing reasons.   The Justices expressed concern that this statutory provision created constitutional difficulties in light of Booker and that Ciongoli’s argument would also prevent district judges from considering post-sentencing aggravating factors that would justify an increased sentence. Justice Ginsburg expressed further concern that ignoring the defendant’s good behavior after sentencing would undermine the statutory requirement to impose a sentence “sufficient but not greater than necessary to deter criminal conduct . . . and protect public against future crimes.”

Throughout the Pepper argument, Justice Breyer, the chief architect of the Booker advisory guidelines remedy, seemed uniquely interested in reviewing past jurisprudential battles.  He highlighted (yet again) that he had persistently dissented from the constitutional holdings that prompted the Booker ruling, and he complained repeatedly about how lower courts (and the Court itself in a prior ruling from which Justice Breyer also dissented) have sought to distinguish between departures and variances from the federal Sentencing Guidelines in the exercise of post-Booker sentencing discretion.

The questions posed by various Justices strongly suggested that a majority of the Court is likely to declare that the broad post-Booker sentencing discretion possessed by district judges extends fully to all aspects of resentencing proceedings.  But the argument also spotlighted that the three Justices with the most professional history with the federal criminal justice system — former federal prosecutor Justices Alito, former U.S. Sentencing Commission Justice Breyer and former federal district judge Justice Sotomayor — may each want their own diverse ideological and idiosyncratic concerns about federal sentencing law and policy to find expression in the Court’s work in Pepper.  While I suspect that the Court may largely seek to avoid addressing the broader constitutional and policy principles implicated in Pepper, the sympathetic facts presented by the defendants and other dynamic sentencing realities might well prompt some Justices in Pepper to opine on the current state and potential future direction of the federal sentencing system.