Third Circuit: Post-Sentencing Rehabilitation Matters Post-Pepper

If you represent a criminal defendant who is up for resentencing on remand, a new Third Circuit Court of Appeals opinion could be good news for your client. This week, the Third Circuit has clarified when post-sentencing rehabilitation considerations are appropriate in resentencing.

The Third Circuit vacated and remanded Santiago Salinas-Cortez's original sentence for conspiracy with intent to distribute because the district court had not addressed Salinas-Cortez's request for a "minor role adjustment." During the subsequent sentencing hearing, Salinas-Cortez asked the district court to consider the efforts he had made toward rehabilitation since he was first sentenced.

The court rejected Salinas-Cortez's request to consider his post-sentencing rehabilitation, and reimposed the original sentence. A week later, the Supreme Court decided United States v. Pepper.

Salinas-Cortez appealed again, arguing that the district court erred in refusing to consider any evidence of his post-sentencing rehabilitation on remand as permitted by Pepper.

In Pepper, the Supreme Court ruled that, once an original sentence is set aside on appeal, a district court could consider post-sentencing rehabilitation in determining an appropriate sentence on remand. The Court reasoned that a defendant's post-sentencing rehabilitation may, in some cases, be as significant in assessing the defendant's likelihood of recidivism as the defendant's conduct before he was forced to account for his anti-social behavior.

Pepper, however, also gives an appellate court discretion to limit the scope of resentencing to exclude post-sentencing rehabilitation. Here, the government argued that the Third Circuit had exercised that discretion.

The Third Circuit Court of Appeals clarified its position on such limitations, noting that there must be an express limitation on the scope of resentencing. As the Third Circuit had not explicitly stated that the district court should not consider Salinas-Cortez's post-sentencing rehabilitation efforts, it found that the district court erred in refusing to consider rehabilitation.

If the hope of supervised release is not enough to persuade a convicted client to mind his Ps and Qs in the pen, tell him to consider this: best behavior during a sentencing appeal could result in a lighter punishment if he wins resentencing.

Related Resources:

• U.S. v. Salinas-Cortez (Third Circuit Court of Appeals)
• Pepper v. United States (FindLaw's CaseLaw)
• Recalculate: Feds Win in Vincent Fumo Sentence Appeal (FindLaw's Third Circuit blog)