Federal Courts - Post-Sentence Rehabilitation

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.