Potentially, this is big news for those looking for a reduction POST-SENTENCE in federal Court! The lawyers at Gounaris Abboud will be watching this closely:
Before 2000, there was a circuit split on whether courts could consider the defendant's post-sentencing conduct for purposes of downward departure when a defendant was resentenced after appellate remand. In 2000, the Commission resolved the split by promulgating USSG 5K2.19, which states that post-sentencing rehabilitation is not an appropriate basis for downward departure.
Now, after Booker, there is once again a circuit split. Compare United States v. Lloyd, 469 F.3d 319, 324 (3d Cir. 2006) (stating that it "would not hold that a court never could consider a defendant's post-sentencing rehabilitation efforts when resentencing" following a Booker remand, but that post-sentence rehabilitative efforts should affect the sentence only in "an unusual case"), with United States v. Pepper, 570 F.3d 958, 965 (8th Cir. 2009) (holding that it is impermissible to consider post-sentencing rehabilitation for purposes of a downward variance), and United States v. Lorenzo, 471 F.3d 1219 (11th Cir. 2006) (holding that district courts are precluded from considering post-sentencing conduct under § 3553(a),, though it has recently recognized that "there is a question as to whether Lorenzo continues to be good law in light of [Booker, Rita, Kimbrough, Gall, and Spears]," see United States v. Smith, No. 09-13307, 2010 WL 1048819 (11th Cir. Mar. 22, 2010)).
The Eighth Circuit's decision below in Pepper, 570 F.3d 958, 965 (8th Cir. 2009), represents the fourth time the court of appeals has considered Mr. Pepper's case, after two appeals and a GVR in light of Gall and after reassignment (as ordered by the court of appeals) to a different sentencing judge. The new judge denied a variance based on post-offense rehabilitation and decided to grant less of a downward departure for cooperation under 5K1.1 that the previous judge had granted. The Eighth Circuit affirmed.
Also presented is the question whether a district judge who resentences on remand after reassignment is bound by the findings of the previous judge that were affirmed on appeal.