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Federal Sentences: Help Yourself at Sentencing

Whatever You’ve Done Can and Will be Used to Help at Sentencing

Sentencing is a difficult time for everybody surrounding a federal criminal prosecution. Victims and their families are never happy with a merciful prison term, while convicts always want less time than what they received. This gap will never close.

For those sitting with their lawyer at a defense table, anything that can be used to lessen a possible prison term is used on Sentencing Day. On March 2, 2011 the Supreme Court of the United States reversed a decision by the Eighth Circuit court and enabled still more information to be used at sentencing in favor of the defendant.

In Pepper v. United States 562 U.S. 476, the Supreme Court ruled that district courts may consider post-sentencing rehabilitation at a resentencing hearing. Upon hearing this case, the Supreme Court reversed a Circuit decision claiming that post-sentencing rehabilitation was not allowed to be considered at a resentencing hearing. In simple terms: although some rehabilitation happened after the original sentencing date, it did not keep those actions from being used on a defendant’s behalf.

This is a summary of that case, and a more in-depth analysis is lower on in this post.

What This Means to You

Everything a defendant does before and after being charged with a crime is looked at by the presiding court. Use this information to your advantage! Voluntarily entering treatment while on pretrial status (if bond is granted) can take years off of a potential sentence. Screwing up while on pretrial can add those same years onto a sentence, so stay diligent!


After pleading guilty and receiving a sentence containing a very significant downward departure, the United States Attorney appealed, the sentence was vacated, and was remanded back to the district court for resentencing.

The sentence was again pronounced, appealed by the US Attorney, vacated, and remanded for resentencing. The Eighth Circuit court vacated the sentence of Mr. Pepper on three separate occasions because — despite sentencing guidelines being only advisory — it determined that the sentence was reduced too much and was therefore unreasonable.

In the fourth trip though the courts (referred to by the Supreme Court Slip Opinion as Pepper IV), the district court imposed a 65-month sentence. That sentence was affirmed on Pepper’s appeal by the Eighth Circuit, and then granted review by the Supreme Court on appeal by defendant Pepper.

Common sense would dictate that, after the Booker and Gall decisions by the Supreme Court, a district judge’s discretion would exist above appeal so long as that decision was reasonable. However, the Eighth Circuit disagreed with the sentencing below, and held that using post-sentencing rehabilitation as grounds for downward departure at a resentencing was not proper.

This type of disregard for a judge using his own “Judgment” is the reason Gall was granted Supreme Court review after Booker in the first place. The Supreme Court felt it needed to, once again, make a judge’s judgment legal.

To drive this point home, the high court held the following:

“[C]onsistent 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 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 punishment to be imposed within limits fixed by law,” id., at 246, particularly “the fullest information possible 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 characteristics,” §3553(a)(1). . .”

Pepper v. United States, 562 U.S. 476, 478 (2011)

So, if the law says that no limitation shall be placed on the information a sentencing court may use at sentencing, why did the Eighth Circuit ignore 18 U.S.C. §3661 on three separate occasions? It seems as though it simply did not like the lack of a stiff sentence for Pepper, regardless if that sentence was given under sound legal judgment. The Supreme Court disagreed, vacated in part, affirmed in part, and remanded.

When Pepper Can’t Be Used

In an interesting case from the Sixth Circuit, several issues that are important to defendants post-2018 are considered in a case that has been working it’s way through the justice system for 7 years after the initial sentence was pronounced. This is an in-depth analysis:

In United States v. Richardson, Nos. 17-2157, 17-2183 , (6th Cir. 2020), defendant Frank Richardson took his sentence to the appeals court for a third time since he was originally sentenced. Richardson had been convicted by a jury of committing a string of armed robberies in and around the Detroit area.

On direct appeal, his sentence was affirmed by the Sixth Circuit. The Supreme Court then vacated and sent the case back to the appeals court for reconsideration. This was because a new case Johnson v. United States, 135 S. Ct. 2551 (2015), held that crimes of violence that only had the potential of violence, but that didn’t actually involve any real or threatened violence, could not be considered crimes of violence themselves. In technical terms, this decision declared the residual clause of the definition of a crime of violence contained in 18 U.S.C. §924(c) unconstitutionally vague.

The Sixth Circuit vacated and sent the sentence back to the original sentencing court, who then pronounced the same sentence again, but ostensibly considering Johnson when doing so. He appealed his new (same) sentence.

The Sixth Circuit affirmed his sentence again, and again Richardson asked the Supreme Court to review. However, during this time, President Trump signed the First Step Act of 2018 into law. Because the First Step Act made, ” several changes to sentencing law, including a major change in the way courts sentence repeat offenders under § 924(c),” the Supreme Court granted his appeal, vacated his sentence, and remanded to the appeals court so it could determine whether the First Step Act had any affect on his sentence.

Important to our story here, though, is not that the First Step Act may have affected Richardson’s sentence. What is important is whether or not his new sentence, which was the same as his old sentence, was limited in scope or not.

A full resentencing after the first or second remand from the Supreme Court would necessarily bring up any rehabilitation he had done in prison. That means the district court, or the Sixth Circuit, would need to consider the Pepper decision in resentencing. A limited resentencing would only consider the Johnson decision or the First Step Act as they applied to Richardson.

Richardson also alleges that the district court’s decision to reinstate his original sentence is both procedurally and substantively unreasonable. Richardson does not distinguish the court’s alleged procedural errors from its alleged substantive errors. Rather, he levies a general objection that the district court failed to articulate its reasoning for rejecting his arguments and reinstating his original sentence. And he alleges specific errors, including that the district court (1) overlooked his argument about the calculation of his base offense level and criminal history scores; (2) ignored his post-sentencing conduct, which it could consider under Pepper v. United States, 562 U.S. 476 (2011); and (3) failed to consider reducing his sentence on the non-§ 924(c) counts to adjust for the mandatory consecutive sentences on the § 924(c) counts.

… Richardson claims that the district court failed to consider his post-sentencing rehabilitation, as Pepper allows, but because we issued a limited remand, the district court did not need to consider that factor before resentencing Richardson. Indeed, the Supreme Court noted that it did not intend “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.” Pepper, 562 U.S. at 505 n.17. For that reason, we have held that Pepper-related arguments are appropriate only when the remand is general

United States v. Richardson, Nos. 17-2157, 17-2183 (6th Cir. 2020)

So, although Richardson benefited legally from the Johnson decision, and the First Step Act, the Sixth Circuit determined that neither of these were general, and that neither of them required a full resentencing, and thus Pepper would not be used.

[Update 3/5/2020: This decision is very new as of this writing, as it was decided on January 27, 2020. Under Supreme Court Rules, Richardson has 90 days to file a request for yet another review. After some digging, he doesn’t seem to have filed a petition for review yet, but he has until April 26, 2020 to file again to the Supreme Court to challenge whether or not his sentencing was properly limited in scope, or whether he should have had a full (general) resentencing on remand.]