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Red Hot Chili Pepper: An Individualized Sentencing Encore
By Steven G. Kalar, Jon M. Sands
Does it ever seem like the courts of appeals didn’t get the Booker
memo?1 It must feel that way to the Supreme Court, which yet again has
reassured us that it meant what it said in its revolutionary Sixth
Amendment sentencing jurisprudence. In Pepper v. United States, Justice
Sotomayor writes for the Court and holds that postsentencing
rehabilitation is fair game for consideration on sentencing remand.2
A close reading of the opinion, moreover, reveals that it is more than
just a mop-up of sentencing statutes that Justice Breyer forgot to
invalidate in Booker. The real spice in Pepper is the Court’s reminder
to the courts of appeals and the Sentencing Commission that the history
and characteristics of the offender are just as important as the nature
of the offense in just sentencing (just in case its message in Gall
But Wait, There’s More
Are you familiar with those late-night infomercials that promise the latest wonder gadget for the low, low p
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