High Court Tackles Post-Sentencing Procedure

     WASHINGTON (CN) - Supreme Court justices on Monday considered whether a federal judge could consider a defendant's post-sentencing rehabilitation in order to reduce his sentence, and whether a newly assigned judge has to follow sentencing findings issued by the original judge.
     The case involved Jason Pepper, who was charged with drug distribution but received a lesser sentence than the mandatory 10-year minimum because he completed rehabilitation and cooperated with authorities. The government appealed to the 8th Circuit, which reversed, saying that the district court should not have used Pepper's post-sentencing rehabilitation to downgrade his sentence.
     Justice Sonia Sotomayor asked why a judge does not have the power to look at all the factors in determining the appropriate sentence, challenging the argument of Pepper's attorney, Alfredo Parrish, that a newly assigned judge was obligated to keep the same downgraded sentence for Pepper in a resentencing because of the "law of the case."
     "[W]hy isn't a new sentence just that: A new sentence?" Sotomayor asked.
     Parrish said a newly assigned judge can consider all the facts, but in Pepper's case, the law of the case survives because no new facts were presented before his resentencing.
     Attorney Adam Ciongoli, appointed to represent amicus curiae in favor of upholding the 8th Circuit's ruling, argued that post-sentencing rehabilitation could not be considered in resentencing.
     Sotomayor and Justice Samuel Alito pointed out that if the court agreed with Ciongoli's reasoning that a defendant who successfully completed post-sentencing rehabilitation could not use it to lower his sentence, then committing criminal acts after sentencing would not affect his sentence either. Ciongoli said that was true, but the defendant could be tried for the criminal conduct in a separate case.
     Ciongoli said allowing a defendant to submit new evidence showing model behavior would create a "procedural merry-go-round" of the district court imposing a lighter sentence, the government appealing to make it higher, and the appellate court remanding it to the district court, who in the meantime could find more evidence that the defendant was rehabilitated and behaving as a model citizen.
     Justice Ruth Bader Ginsburg said if the judge ignored the defendant's model behavior, he would be going against guidance that a sentence should be "sufficient but not greater than necessary to deter criminal conduct...and protect public against future crimes" because the sentence would be too harsh for the defendant's current behavior.
     Ciongoli acknowledged this difficulty, but argued against what he said was Pepper and the government's view that mandatory guidelines for sentencing were "facially unconstitutional."
     Justice Elena Kagan recused herself from the case due to her previous position as solicitor general.
     The case is Pepper v. United States, no. 09-6822.