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Every lawyer thinks his or her petition in the U.S. Supreme Court is unique in some way, but lawyers for Jason Pepper emphasized in the first sentence of their opening statement, “This is one unique case.” The justices obviously saw something worth considering because they granted review in June in Pepper v. U.S., a particularly compelling case about post-sentencing rehabilitation. The case offers the justices an opportunity to provide some guidance to sentencing judges about how much weight to give an offender’s successful rehabilitation if he or she must be resentenced following appeals. Pepper was arrested in Iowa in 2003 for conspiracy to distribute methamphetamine. He pleaded guilty, appeared for sentencing in 2004 and began his long odyssey through a sentencing labyrinth. His lawyer and the U.S. Probation Office recommended departure from the sentencing guidelines so Pepper could get into a boot camp. They said boot camp was appropriate because of his nonviolent background, his offense and his major assistance to the government in tackling a drug ring. Pepper, however, actually sought prison time in order to get into a 500-hour drug treatment program offered at a federal prison in Yankton, S.D. The judge sentenced him to 24 months in prison so he could qualify for the drug program. In 2005, he finished his prison sentence and began five years of supervised release. In the meantime, however, the government appealed the 24-month sentence. In 2009, after three resentencing hearings, four reviews by the U.S. Court of Appeals for the 8th Circuit, another appeal by the government and an appeal by Pepper, Pepper was ordered back to prison by a different sentencing judge for an additional 41 months. At the time of that last sentencing, Pepper had turned 29, had been married for two years to a woman with a 7-year-old daughter and was their primary support. He also was attending college full-time and was a Sam’s Club overnight assistant manager who had been named associate of the year. In Pepper’s case, the 8th Circuit said, “We commend Pepper on the positive changes he has made in his life. However, the law of our circuit is clear. ‘[E]vidence of [a defendant]‘s post-sentence rehabilitation 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.’” Pepper’s counsel, Alfredo Parrish of Kruidenier Dunn Boles Gribble Parrish Gentry & Fisher in Des Moines, Iowa, contends that the circuits are split on whether judges may consider post-sentencing rehabilitation in granting a downward departure from a guideline-recommended sentence. In addition to the 8th Circuit, Parrish said, the 6th, 7th and 11th circuits have all ruled post-sentencing rehabilitation is not an appropriate factor for judicial consideration. The 1st, 3d and 4th circuits permit district courts to consider post-sentencing information in certain circumstances. Parrish relies in part on Gall v. U.S., a 2007 decision in which the justices rejected the 8th Circuit’s policy that sentencing judges must justify downward departures with findings of extraordinary circumstances. The Gall case involved post-offense rehabilitation. “There appear to be hints in Gall that considering post-offense and post-sentencing rehabilitation in extraordinary circumstances is permissible at sentencing,” Parrish said in his petition. In a twist in the Supreme Court, the government now agrees with Pepper that post-sentencing rehabilitation is a factor to be considered. In its brief in opposition to Pepper’s petition, then Solicitor General Elena Kagan wrote: “No provision in Section 3553(a) prohibits a court from considering at resentencing a defendant’s efforts at rehabilitation undertaken after his initial sentencing. On the contrary, Section 3553(a) specifically instructs sentencing Courts to consider `the history and characteristics of the defendant.’” The government had urged the court to vacate the 8th Circuit’s judgment and remand the case for consideration of the government’s latest views and recent case law. But the justices decided to hold arguments. The justices appointed Adam Ciongoli, a former clerk to Justice Samuel Alito Jr. and now general counsel of Willis Group Holdings, to defend the 8th Circuit judgment. And on July 22, the district judge who added the 41 months to Pepper’s sentence — Chief Judge Linda Reade of the Northern District of Iowa — approved his release from prison pending the decision in the Supreme Court. This is one of 11 cases from which now Justice Kagan has said she will recuse herself because of her involvement in the case. The Court has not scheduled arguments yet. Marcia Coyle can be contacted at mcoyle@alm.com.

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