Pepper v. United States (09-6822)

argument 09-6822

Pepper v. United States

Supreme Court of the United States 59 min 4 speakers 8 chapters transcribed 6 days ago official recording ↗

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What is the central legal question presented in Pepper v. United States?

John G. Roberts 0:00

We will hear argument next this morning in case 096822, Pepper v. United States.

Jason Pepper 0:06

Mr. Parish. MR. Mr. Chief Justice, and may it please the Court, having successfully completed drug treatment in prison and having come home to succeed as a college student, valued employee, and family man, Jason Pepper presents to this Court two questions. Whether post-sentencing rehabilitation is a permissible basis for a downward variance from the sentencing guidelines at resentencing and whether the district court judge in Pepper's resentencing was bound by the law of the case doctrine in its 5K departure ruling absent new facts, changes in the controlling law, or to avoid a manifest injustice. Post-sentencing rehabilitation has traditionally been a relevant factor for judges to consider and is now a permissible ground for a non-guideline sentence.

Jason Pepper 0:57

and 3661 are the authorities permitting post-sentencing rehabilitation as a consideration for variance.

John G. Roberts 1:04

Counsel, I think you've got a difficult job navigating between your two issues. It seems on the first one, the 40 percent to 20 percent, you're saying, look, you've got to stick with what you did before. And when it gets to the post-sentencing consideration, you're saying, well, all bets are off. We can start started new, we can look at things that have happened since. Is there a way you reconcile that tension?

Jason Pepper 1:30

They're like apples and oranges. The law of the case doctrine is what you refer to as a matter that's left in the district court. The other issue of whether or not the individual qualifies for a downward variance is a completely separate issue. The law of the case remains with the district court judge. In the other issue that we have, it's whether or not he's entitled to a downward variance based upon the book of remedies. So they are not, in fact, the same issues.

Unknown 2:01

If the law of the case is left to the district court, then the district court can say, well, the law of the case, that's what that other judge said, but it was a question of what's a reasonable time, and I appraise it differently. The judgment has been vacated. The sentence has been vacated. So how does the law of the case survive? I mean, the judgment is no longer.

Jason Pepper 2:31

The law of the case survives on a couple of basic principles. One, there has to be new facts that the district court judge heard. There has to be a change of controlling law. And there has to be a reason to avoid a manifest justice. If you go back to the 5K, one departure that the first judge made the decision on That was the law of the case. That percentage followed Mr. Pepper straight through the process. That's a totally separate ruling from any of the other factors in this case that relate to his downward variance.

Unknown 3:04

Can a district judge say later on in the process, I made a ruling earlier in the case. I've since done a lot of research, and I now think that that ruling was wrong.

Jason Pepper 3:20

Absolutely. They could do that. The circumstances would be that they see new facts, was there a change in controlling law. The reason we do this is because we want to have confidence in that decision to make sure litigants don't go judge shopping. So that's part of the reason this law of the case doctrine is in there. Even in Judge Posner's Seventh Circuit decision we cite in our brief, you defer to the first judge. But any time a judge can reconsider, there's no problem with that. But the law of the case on the 5K departure, when the first district judge heard substantial evidence with regard to the issue of cooperation, and that's what he did. When the next judge heard it, she heard no new facts, no change in controlling law, and absolutely heard no evidence with regard

John G. Roberts 4:03

to it. Well, that's kind of a fortuitous situation, then. You're sort of saying if you end up with the same judge, she can reconsider her own prior determination. But if you — for whatever reason, the death of the first judge, you're in a different judge. She's bound by what went before. That doesn't seem —

Jason Pepper 4:19

Well, that's an excellent example, bound by, but you have to look at the law of the case and make a decision whether or not new facts came in, there was a change in controlling law.