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Private lawyer to argue sentencing

UPDATE Friday p.m.  A federal judge on July 22 ordered Jason Pepper’s release from prison while the Supreme Court considers his appeal.  (Thanks to Doug Berman of Sentencing Law and Policy blog for the alert and the link to the release order.)


The Supreme Court on Thursday named a New York City lawyer and former Supreme Court clerk to argue the side of a criminal sentencing case that the federal government normally would defend.   The government, however, has sided with the prison inmate challenging his sentence in Pepper v. U.S. (09-6822) — a case granted review near the end of last Term and not yet scheduled for oral argument.

At issue in the case is whether, under federal law, a judge imposing a new sentence after an earlier one was set aside  is barred from reducing the sentence as a way to give the individual credit for having made efforts to rehabilitate himself after the initial sentence was imposed.  The Justice Department now takes the position that the judge may do so.  The Department had urged the Court to send the case back to the Eighth Circuit Court to consider the Department’s present position, but the Supreme Court went ahead and granted review June 28 of an appeal by the Iowa prisoner, Jason Pepper.

In Thursday’s order, the Court chose Adam G. Ciongoli to enter the case as a friend-of-the-court and present a merits brief and an oral argument that a judge lacks that authority.  Ciongoli, now engaged in corporate practice and teaching part-time at Columbia Law School, is a former law clerk to Justice Samuel A. Alito, Jr.

Pepper pleaded guilty to a charge of conspiring to distribute an illegal drug, methamphetamine, after being arrested during a federal probe of a “meth” trafficking ring in Iowa.  Under federal guidelines, his sentence could have been set between 97 and 127 months, but the judge imposed a sentence of only 24 months – a figure the judge chose to make Pepper eligible for drug rehabilitation at a federal prison.

That reason was rejected by the Eighth Circuit, but, at a new sentencing proceeding, the judge again gave Pepper 24 months, in part because of Pepper’s efforts at rehabilitation since the original sentencing.  After federal prosecutors appealed, that sentence, too, was set aside.  Ultimately, after further proceedings, a new judge gave Pepper 65 months in prison.  He had already served the original 24-month sentence, so was ordered back to prison to serve the additional 41 months.

After finishing his initial sentence, Pepper had enrolled in college, had married and become a stepfather, and was working as a supervisor of the night crew at a Sam’s Club retail store.   After the new, longer sentence was imposed, Pepper appealed the case to the Supreme Court, gaining review.

Once Pepper’s lawyers and Ciongoli file briefs on the merits, the case will be scheduled for oral argument.  If Justice-designate Elena Kagan is on the Court when the case is considered, she presumably will not take part, since she was counsel of record for the government in the case in her post as U.S. Solicitor General.