Justice SOTOMAYOR delivered the opinion of the Court.
This Court has long recognized that sentencing judges "exercise a wide discretion" in the types of evidence they may consider when imposing sentence and that "[h]ighly relevant—if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Williams v. New York, 337 U.S. 241, 246-247, 69 S.Ct. 1079, 93 S.Ct. 1337 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that "[n]o limitation shall be placed on the information" a sentencing court may consider "concerning the [defendant's] background, character, and con-duct," and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including "the history and characteristics of the defendant," § 3553(a)(1). The United States Court of Appeals for the Eighth Circuit concluded in this case that the
We hold that when a defendant's sentence has been set aside on appeal, a district court at resentencing may consider evidence of the defendant's postsentencing rehabilitation and that such evidence may, in appropriate cases, support a downward variance from the now-advisory Federal Sentencing Guidelines range. Separately, we affirm the Court of Appeals' ruling that the law of the case doctrine did not require the District Court in this case to apply the same percentage departure from the Guidelines range for substantial assistance that had been applied at petitioner's prior sentencing.
In October 2003, petitioner Jason Pepper was arrested and charged with conspiracy to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. § 846. After pleading guilty, Pepper appeared for sentencing before then-Chief Judge Mark W. Bennett of the U.S. District Court for the Northern District of Iowa. Pepper's sentencing range under the Guidelines was 97 to 121 months.
In May 2006, the District Court conducted a resentencing hearing and heard from three witnesses. In his testimony, Pepper first recounted that while he had previously been a drug addict, he successfully completed a 500-hour drug treatment program
Pepper's father testified that he had virtually no contact with Pepper during the 5-year period leading up to his arrest. Id., at 117. Pepper's drug treatment program, according to his father, "truly sobered him up" and "made his way of thinking change." Id., at 121. He explained that Pepper was now "much more mature" and "serious in terms of planning for the future," id., at 119, and that as a consequence, he had re-established a relationship with his son, id., at 118-119.
Finally, Pepper's probation officer testified that, in his view, a 24-month sentence would be reasonable in light of Pepper's substantial assistance, postsentencing rehabilitation, and demonstrated low risk of recidivism. Id., at 126-131. The probation officer also prepared a sentencing memorandum that further set forth the reasons supporting his recommendation for a 24-month sentence.
The District Court adopted as its findings of fact the testimony of the three witnesses and the probation officer's sentencing memorandum. The court granted a 40 percent downward departure based on Pepper's substantial assistance, reducing the bottom of the Guidelines range from 97 to 58 months. The court then granted a further 59 percent downward variance based on, inter alia, Pepper's rehabilitation since his initial sentencing. Id., at 143-148.
The Government again appealed Pepper's sentence, and the Court of Appeals again reversed and remanded for resentencing. See United States v. Pepper, 486 F.3d 408, 410, 413 (C.A.8 2007) (Pepper II). The court concluded that, while it was "a close call, [it could not] say the district court abused its discretion" by granting the 40 percent downward departure for substantial assistance. Id., at 411. The court found the further 59 percent downward variance, however, to be an abuse of discretion. Id., at 412-413. In doing so, the court held that Pepper's "post-sentencing rehabilitation was an impermissible factor to consider in granting a downward variance." Id., at 413. The court stated that evidence of postsentencing rehabilitation "`is not relevant and will not be permitted at resentencing because the district court could not have considered that evidence at the time of the original sentencing,'" and permitting courts to consider post-sentencing rehabilitation at resentencing
After the Court of Appeals' mandate issued, Pepper's case was reassigned on remand to Chief Judge Linda R. Reade. In July 2007, Chief Judge Reade issued an order on the scope of the remand from Pepper II, stating that "[t]he court will not consider itself bound to reduce [Pepper's] advisory Sentencing Guidelines range by 40% pursuant to USSG § 5K1.1." United States v. Pepper, No. 03-CR-4113-LRR, 2007 WL 2076041, *4 (N.D.Iowa 2007). In the meantime, Pepper petitioned this Court for a writ of certiorari, and in January 2008, we granted the petition, vacated the judgment in Pepper II, and remanded the case to the Court of Appeals for further consideration in light of Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). See Pepper v. United States, 552 U.S. 1089, 128 S.Ct. 871, 169 L.Ed.2d 715 (2008).
On remand, the Court of Appeals held that Gall did not alter its prior conclusion that "post-sentence rehabilitation is an impermissible factor to consider in granting a downward variance." 518 F.3d 949, 953 (C.A.8 2008) (Pepper III). The court again reversed the sentence and remanded for resentencing.
In October 2008, Chief Judge Reade convened Pepper's second resentencing hearing. Pepper informed the court that he was still attending school and was now working as a supervisor for the night crew at a warehouse retailer, where he was recently selected by management as "associate of the year" and was likely to be promoted the following January. App. 320, 323. Pepper also stated that he had recently married and was now supporting his wife and her daughter. Id., at 321. Pepper's father reiterated that Pepper was moving forward in both his career and his family life and that he remained in close touch with his son. See id., at 300-304.
In December 2008, Chief Judge Reade issued a sentencing memorandum. Noting that the remand language of Pepper III was nearly identical to the language in Pepper II, the court again observed that it was "not bound to reduce [Pepper's] advisory Sentencing Guidelines range by 40%" for substantial assistance and concluded that Pepper was entitled only to a 20 percent downward departure because the assistance was "timely, helpful and important" but "in no way extraordinary." Sealed Sentencing Memorandum in No. 03-CR-4113-LRR (ND Iowa), Doc. 198, pp. 7, 10. The court also rejected Pepper's request for a downward variance based on, inter alia, his postsentencing rehabilitation. Id., at 16.
The District Court reconvened Pepper's resentencing hearing in January 2009. The court's decision to grant a 20 percent downward departure for substantial assistance resulted in an advisory Guidelines range of 77 to 97 months. The court also granted the Government's motion under Rule 35(b) of the Federal Rules of Criminal Procedure to account for investigative assistance Pepper provided after he was initially sentenced. The court imposed a 65-month term of imprisonment, to be followed by 12 months of supervised release.
The Court of Appeals affirmed Pepper's 65-month sentence. 570 F.3d 958 (C.A.8
The Court of Appeals also rejected Pepper's claim that the scope of the remand and the law of the case from Pepper II and Pepper III required the District Court to reduce the applicable Guidelines range by at least 40 percent pursuant to USSG § 5K1.1. The court noted that its remand orders in Pepper II and Pepper III were "general remand[s] for resentencing," which "did not place any limitations on the discretion of the newly assigned district court judge in resentencing." 570 F.3d, at 963. The court further noted that, although issues decided by an appellate court become law of the case on remand to the sentencing court, its earlier decisions merely held that a 40 percent downward departure for substantial assistance was not an abuse of discretion, not that the district court would be bound by the 40 percent departure previously granted. Id., at 963-964.
We granted Pepper's petition for a writ of certiorari, 561 U.S. ___, 130 S.Ct. 3499, 177 L.Ed.2d 1089 (2010), to decide two questions: (1) whether a district court, after a defendant's sentence has been set aside on appeal, may consider evidence of a defendant's postsentencing rehabilitation to support a downward variance when resentencing the defendant, a question that has divided the Courts of Appeals;
"It has been uniform and constant in the federal judicial tradition for
Consistent with this principle, we have observed that "both before and since the American colonies became a nation, courts in this country and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within limits fixed by law." Williams, 337 U.S., at 246, 69 S.Ct. 1079. In particular, we have emphasized that "[h]ighly relevant— if not essential—to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics." Id., at 247, 69 S.Ct. 1079. Permitting sentencing courts to consider the widest possible breadth of information about a defendant "ensures that the punishment will suit not merely the offense but the individual defendant." Wasman v. United States, 468 U.S. 559, 564, 104 S.Ct. 3217, 82 L.Ed.2d 424 (1984).
In 1970, Congress codified the "longstanding principle that sentencing courts have broad discretion to consider various kinds of information" at 18 U.S.C. § 3577 (1970 ed.). United States v. Watts, 519 U.S. 148, 151, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam). Section 3577 (1970 ed.) provided:
In the Sentencing Reform Act of 1984(SRA), 18 U.S.C. § 3551 et seq., Congress effected fundamental changes to federal sentencing by creating the Federal Sentencing Commission and introducing the Guidelines scheme. In doing so, however, Congress recodified § 3577 without change at § 3661. The Sentencing Commission, moreover, expressly incorporated § 3661 in the Guidelines:
Both Congress and the Sentencing Commission thus expressly preserved the traditional discretion of sentencing courts to "conduct an inquiry broad in scope, largely unlimited either as to the kind of information [they] may consider, or the source from which it may come." United States v. Tucker, 404 U.S. 443, 446, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972).
Our post-Booker opinions make clear that, although a sentencing court must "give respectful consideration to the Guidelines, Booker permits the court to tailor the sentence in light of other statutory concerns as well." Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (internal quotation marks and citation omitted). Accordingly, although the "Guidelines should be the starting point and the initial benchmark," district courts may impose sentences within statutory limits based on appropriate consideration of all of the factors listed in § 3553(a), subject to appellate review for "reasonableness." Gall, 552 U.S., at 49-51, 128 S.Ct. 586. This sentencing framework applies both at a defendant's initial sentencing and at any subsequent resentencing after a sentence has been set aside on appeal. See 18 U.S.C. § 3742(g) ("A district court to which a case is remanded... shall resentence a defendant in accordance with section 3553"); see also Dillon v. United States, 560 U.S. ___, ___, 130 S.Ct. 2683, 2692, 177 L.Ed.2d 271 (2010) (distinguishing between "sentence-modification proceedings" under 18 U.S.C. § 3582(c)(2), which "do not implicate the interests identified in Booker," and "plenary resentencing proceedings," which do).
In light of the federal sentencing framework described above, we think it clear that when a defendant's sentence has been set aside on appeal and his case remanded for resentencing, a district court may consider evidence of a defendant's rehabilitation since his prior sentencing and that such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.
Preliminarily, Congress could not have been clearer in directing that "[n]o limitation ... be placed on the information concerning the background, character, and conduct" of a defendant that a district court may "receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. § 3661. The plain language of § 3661 makes no distinction between a defendant's initial sentencing and a subsequent resentencing after a prior sentence has been set aside on appeal. We have recognized that "the broad language of § 3661" does not provide "any basis for the courts to invent a blanket prohibition against considering certain types of evidence at sentencing." Watts,
In addition, evidence of postsentencing rehabilitation may be highly relevant to several of the § 3553(a) factors that Congress has expressly instructed district courts to consider at sentencing. For example, evidence of postsentencing rehabilitation may plainly be relevant to "the history and characteristics of the defendant." § 3553(a)(1). Such evidence may also be pertinent to "the need for the sentence imposed" to serve the general purposes of sentencing set forth in § 3553(a)(2)—in particular, to "afford adequate deterrence to criminal conduct," "protect the public from further crimes of the defendant," and "provide the defendant with needed educational or vocational training ... or other correctional treatment in the most effective manner." §§ 3553(a)(2)(B)-(D); see McMannus, 496 F.3d, at 853 (Melloy, J., concurring) ("In assessing ... deterrence, protection of the public, and rehabilitation, 18 U.S.C. § 3553(a)(2)(B)(C) & (D), there would seem to be no better evidence than a defendant's post-incarceration conduct"). Postsentencing rehabilitation may also critically inform a sentencing judge's overarching duty under § 3553(a) to "impose a sentence sufficient, but not greater than necessary" to comply with the sentencing purposes set forth in § 3553(a)(2).
As the original sentencing judge recognized, the extensive evidence of Pepper's rehabilitation since his initial sentencing is clearly relevant to the selection of an appropriate sentence in this case. Most fundamentally, evidence of Pepper's conduct since his release from custody in June 2005 provides the most up-to-date picture of Pepper's "history and characteristics." § 3553(a)(1); see United States v. Bryson, 229 F.3d 425, 426 (C.A.2 2000) ("[A] court's duty is always to sentence the defendant as he stands before the court on the day of sentencing"). At the time of his initial sentencing in 2004, Pepper was a 25-year-old drug addict who was unemployed, estranged from his family, and had recently sold drugs as part of a methamphetamine conspiracy. By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had re-established a relationship with his father, and was married and supporting his wife's daughter. There is no question that this evidence of Pepper's conduct since his initial sentencing constitutes a critical part of the "history and characteristics" of a defendant that Congress intended sentencing courts to consider. § 3553(a).
Pepper's postsentencing conduct also sheds light on the likelihood that he will engage in future criminal conduct, a central factor that district courts must assess when imposing sentence. See §§ 3553(a)(2)(B)-(C); Gall, 552 U.S., at 59, 128 S.Ct. 586 ("Gall's self-motivated rehabilitation... lends strong support to the conclusion that imprisonment was not necessary to deter Gall from engaging in future criminal conduct or to protect the public from his future criminal acts" (citing §§ 3553(a)(2)(B)-(C))). As recognized by Pepper's probation officer, Pepper's steady employment, as well as his successful completion of a 500-hour drug treatment program and his drug-free condition, also suggest a diminished need for "educational or vocational training ... or other correctional treatment." § 3553(a)(2)(D). Finally, Pepper's exemplary postsentencing conduct may be taken as the most accurate indicator of "his present purposes and tendencies
In sum, the Court of Appeals' ruling prohibiting the District Court from considering any evidence of Pepper's postsentencing rehabilitation at resentencing conflicts with longstanding principles of federal sentencing law and contravenes Congress' directives in §§ 3661 and 3553(a).
Amicus nevertheless advances two principal arguments in defense of the Court of Appeals' ruling: (1) 18 U.S.C. § 3742(g)(2), which restricts the discretion of a resentencing court on remand to impose a non-Guidelines sentence, effectively forecloses consideration of a defendant's postsentencing rehabilitation; and (2) permitting district courts to consider postsentencing rehabilitation would defeat Congress' objectives under § 3553(a). We are not persuaded.
Amicus' main argument relies on 18 U.S.C. § 3742(g)(2), a provision that the Court of Appeals did not cite below. That provision states that when a sentence is set aside on appeal, the district court to which the case is remanded:
In operation, § 3742(g)(2) restricts the discretion of a district court on remand by precluding the court from imposing a sentence outside the Guidelines range except upon a "ground of departure" that was expressly relied upon in the prior sentencing and upheld on appeal. Amicus thus correctly contends that, on its face, § 3742(g)(2) effectively forecloses a resentencing court from considering evidence of a defendant's postsentencing rehabilitation for purposes of imposing a non-Guidelines sentence because, as a practical matter, such evidence did not exist at the time of the prior sentencing. As the Government concedes, however, § 3742(g)(2) is invalid after Booker.
As we have explained, Booker held that where judicial factfinding increases a defendant's applicable Sentencing Guidelines range, treating the Guidelines as mandatory in those circumstances would violate the defendant's Sixth Amendment right to be tried by a jury and to have every element of an offense proved by the Government beyond a reasonable doubt. See supra, at 11. We recognized in Booker that, although the SRA permitted departures from the applicable Guidelines range in limited circumstances,
To remedy the constitutional problem, we rendered the Guidelines effectively advisory by invalidating two provisions of the SRA: 18 U.S.C. § 3553(b)(1) (2000 ed., Supp. IV), which generally required sentencing courts to impose a sentence within the applicable Guidelines range, and § 3742(e) (2000 ed. and Supp. IV), which prescribed the standard of appellate review, including de novo review of Guidelines departures. 543 U.S., at 259, 125 S.Ct. 738. We invalidated these provisions even though we recognized that mandatory application of the Guidelines would not always result in a Sixth Amendment violation.
We did not expressly mention § 3742(g)(2) in Booker,
The sentencing proceeding at issue in Booker itself illustrates why § 3742(g)(2) cannot withstand Sixth Amendment scrutiny. The district court in Booker increased the defendant's then-mandatory Guidelines range based on a drug-quantity finding that it, rather than the jury, made. 543 U.S., at 227, 125 S.Ct. 738. After we held that the Guidelines must be treated as advisory, we remanded the case for resentencing. Id., at 267, 125 S.Ct. 738. Had
The same result would occur in any sentencing in which a district court erroneously refuses to impose a sentence outside the Guidelines range "based on a misunderstanding of its authority to depart under or vary from the Guidelines." Reply Brief for United States 16. For example, if § 3742(g)(2) remained valid, there would be no remedy at resentencing if a district court erroneously believed the Guidelines were presumptively reasonable, see Nelson v. United States, 555 U.S. ___, ___ (2009) (per curiam) (slip op., at 2), or if it mistakenly thought that a non-Guidelines sentence required extraordinary circumstances, see Gall, 552 U.S., at 47, 128 S.Ct. 586, or if it incorrectly concluded that it could not vary from the Guidelines based on a policy disagreement with their disparate treatment of crack and powder cocaine, see Kimbrough, 552 U.S., at 101, 128 S.Ct. 558. In such cases, the district court at the initial sentencing proceeding will necessarily have imposed a sentence within the Guidelines range, and thus § 3742(g)(2) would require the imposition of a Guidelines sentence on remand. See Reply Brief for Petitioner 3-5 (describing further categories of cases where "the Booker remedy would be entirely unavailable if § 3742(g)(2) were valid").
To be sure, applying § 3742(g)(2) at resentencing would not always result in a Sixth Amendment violation. For example, where the applicable Guidelines range rests solely on facts found by a jury beyond a reasonable doubt, application of § 3742(g)(2) at resentencing would not render the sentence constitutionally infirm. But, as explained above, that possibility was equally true with respect to the sentencing provisions we invalidated in Booker. See supra, at 16. As with those provisions, "we cannot assume that Congress, if faced with the statute's invalidity in key applications, would have preferred to apply the statute in as many other instances as possible." 543 U.S., at 248, 125 S.Ct. 738. Just as we rejected a two-track system in Booker that would have made the Guidelines mandatory in some cases and advisory in others, we reject a partial invalidation of § 3742(g)(2) that would leave us with the same result.
The fact that § 3742(g)(2) permits a resentencing court on remand to impose a non-Guidelines sentence in cases where the prior sentence expressly relied upon a departure upheld by the court of appeals also does not cure the constitutional infirmity. As explained above, we observed in Booker that the availability of departures from the applicable Guidelines ranges in specified circumstances "does not avoid the constitutional issue." Id., at 234, 125 S.Ct. 738. Because "departures are not available in every case, and in fact are unavailable in most," ibid., we held that remedying the Sixth Amendment problem required invalidation of § 3553(b)(1). That same remedial approach requires us to invalidate § 3742(g)(2).
Amicus' next cluster of arguments focuses on Congress' sentencing objectives under § 3553(a). Preliminarily, amicus contends that even if § 3742(g)(2) is constitutionally invalid, that provision reflects a congressional policy determination that only information available at the time of original sentencing should be considered, and that this policy determination should inform our analysis of whether § 3553(a) permits consideration of postsentencing rehabilitation evidence. This argument, however, is based on a faulty premise.
Contrary to amicus' contention, § 3742(g)(2) does not reflect a congressional purpose to preclude consideration of evidence of postsentencing rehabilitation at resentencing. To be sure, § 3742(g)(2) has the incidental effect of limiting the weight a sentencing court may place on postsentencing rehabilitation by precluding the court from resentencing outside the Guidelines range on a "ground of departure" on which it did not previously rely. But on its face, nothing in § 3742(g)(2) prohibits a district court from considering postsentencing developments—including postsentencing rehabilitation—in selecting a sentence within the applicable Guidelines range. Section 3742(g)(2) also does not apply to resentencings that occur for reasons other than when a sentence is overturned on appeal and the case is remanded (e.g., when a sentence is set aside on collateral review under 28 U.S.C. § 2255). In such circumstances, § 3742(g)(2) does not restrict a district court at all, much less with respect to consideration of postsentencing developments. Accordingly, because we see no general congressional policy reflected in § 3742(g)(2) to preclude resentencing courts from considering postsentencing information,
As we explained above, evidence of postsentencing rehabilitation may be highly relevant to several of the sentencing factors that Congress has specifically instructed district courts to consider. See supra, at 13-15 (discussing §§ 3553(a), (a)(1), (a)(2)(B)-(D)). Amicus, however, argues that consideration of postsentencing rehabilitation is inconsistent with two sentencing factors: § 3553(a)(5), which directs sentencing courts to consider "any pertinent policy statement" of the Sentencing Commission, and § 3553(a)(6), which requires courts to consider "the need to avoid unwarranted sentenc[ing] disparities among defendants with similar records who have been found guilty of similar conduct."
With regard to § 3553(a)(5), amicus points to the Sentencing Commission's policy statement in USSG § 5K2.19, which provides that "[p]ost-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant after imposition of a term of imprisonment for the instant offense[,] are not an appropriate basis for a downward departure when resentencing the defendant for that offense." According to amicus, that policy statement is "clear and unequivocal," and as an exercise of the Sentencing Commission's "core function," should be given effect. Brief for Amicus Curiae in Support of Judgment Below 31-32.
To be sure, we have recognized that the Commission post-Booker continues to "fil[l] an important institutional role" because "[i]t has the capacity courts lack to base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise." Kimbrough, 552 U.S., at 109, 128 S.Ct. 558 (internal quotation marks omitted). Accordingly, we have instructed that district courts must still give "respectful consideration" to the now-advisory Guidelines (and their accompanying policy statements). Id., at 101, 128 S.Ct. 558. As amicus acknowledges, however, our post-Booker decisions make clear that a district court may in appropriate cases impose a non-Guidelines sentence based on a disagreement with the Commission's views. See id., at 109-110, 128 S.Ct. 558. That is particularly true where, as here, the Commission's views rest on wholly unconvincing policy rationales not reflected in the sentencing statutes Congress enacted.
The commentary to USSG § 5K2.19 expresses the Commission's view that departures based on postsentencing rehabilitation would "(1) be inconsistent with the policies established by Congress under 18 U.S.C. § 3624(b) [governing good time credit] and other statutory provisions for reducing the time to be served by an imprisoned person; and (2) inequitably benefit only those who gain the opportunity
In a closely related vein, amicus argues that consideration of postsentencing rehabilitation is inconsistent with § 3553(a)(6), which requires sentencing courts to consider the need to avoid unwarranted sentencing disparities. The Court of Appeals also rested its holding on this ground, reasoning that "`allowing [postsentencing rehabilitation] evidence to influence [defendant's] sentence would be grossly unfair to the vast majority of defendants who receive no sentencing-court review of any positive post-sentencing rehabilitative efforts.'" 570 F.3d, at 965 (quoting McMannus, 496 F.3d, at 852, n. 4). But amicus points to no evidence, nor are we aware of any, suggesting that Congress enacted § 3553(a)(6) out of a concern with disparities resulting from the normal trial and sentencing process.
As the Government explains, moreover, the logic of the Court of Appeals' approach below—i.e., that "post-sentence rehabilitation is not relevant ... because the district court could not have considered that evidence at the time of the original sentencing," 570 F.3d, at 965 (internal quotation marks omitted)—would require sentencing courts categorically to ignore not only postsentencing rehabilitation, but any postsentencing information, including, for example, evidence that a defendant had committed postsentencing offenses. Our precedents, however, provide no basis to support such a categorical bar. See, e.g., Wasman, 468 U.S., at 572, 104 S.Ct. 3217 ("[A] sentencing authority may justify an increased sentence by affirmatively identifying relevant conduct or events that occurred subsequent to the original sentencing proceedings"); cf. North Carolina v. Pearce, 395 U.S. 711, 723, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). Indeed, even the Court of Appeals below does not accept the logical consequence of its approach as it permits district courts to consider post-sentencing conduct that would support a higher sentence. See United States v. Stapleton, 316 F.3d 754, 757 (C.A.8 2003). Nothing in §§ 3553(a) and 3661, however, remotely suggests that Congress intended district courts to consider only postsentencing evidence detrimental to a defendant while turning a blind eye to favorable evidence of a defendant's postsentencing rehabilitation. Cf. United States v. Jones, 460 F.3d 191, 196 (C.A.2 2006) ("Obviously, the discretion that Booker accords sentencing judges to impose non-Guidelines sentences cannot be an escalator that only goes up").
Finally, we note that §§ 3553(a)(5) and (a)(6) describe only two of the seven sentencing factors that courts must consider in imposing sentence. At root, amicus effectively invites us to elevate two § 3553(a) factors above all others. We reject that invitation. See Gall, 552 U.S., at 49-50, 128 S.Ct. 586 (instructing sentencing courts to "consider all of the § 3553(a) factors" (emphasis added)).
For the reasons stated above, we hold that the Court of Appeals erred in categorically precluding the District Court from considering evidence of Pepper's postsentencing rehabilitation after his initial sentence was set aside on appeal. District courts post-Booker may consider evidence of a defendant's postsentencing rehabilitation at resentencing and such evidence may, in appropriate cases, support a downward variance from the advisory Guidelines range.
The second question presented in this case merits only a brief discussion. As noted above, the original sentencing judge in this case granted Pepper a 40 percent downward departure pursuant to USSG § 5K1.1 based on Pepper's substantial assistance and sentenced him to 24 months' imprisonment. When the Court of Appeals vacated that sentence in Pepper II, and again in Pepper III, the case was reassigned on remand to Chief Judge Reade. In resentencing Pepper, Chief Judge Reade ruled that she was not bound by the prior sentencing judge's decision to grant a 40 percent downward departure and instead granted only a 20 percent downward departure, which the Court of Appeals upheld in Pepper IV. Pepper argues that the law of the case doctrine required Chief Judge Reade to apply the same 40 percent departure granted by the original sentencing judge. We disagree.
Preliminarily, we note that the mandates in Pepper II and Pepper III were "general remand[s] for resentencing," which "did not place any limitations on the discretion of the newly assigned district court judge in resentencing Pepper." 570 F.3d, at 963. In his merits briefs to this Court, Pepper does not challenge the scope or validity of the Court of Appeals' mandate ordering de novo resentencing, and thus has abandoned any argument that the mandate itself restricted the District Court from imposing a different substantial assistance departure.
Although we have described the "law of the case [a]s an amorphous concept," "[a]s most commonly defined, the doctrine posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). This doctrine "directs a court's discretion, it does not limit the tribunal's power." Ibid. Accordingly, the doctrine "does not apply if the court is `convinced that [its prior decision] is clearly erroneous and would
Pepper argues that, because the original sentencing judge's decision to grant the 40 percent departure was never set aside by the Court of Appeals or this Court, it constituted the law of the case. As such, Pepper contends that Chief Judge Reade should not have disturbed that ruling absent "compelling justification" for overturning it. Brief for Petitioner 56. According to Pepper, because Chief Judge Reade identified no such justification, the law of the case doctrine required her to adhere to the 40 percent departure granted by the original sentencing judge.
As the Government explains, however, the Court of Appeals in Pepper III set aside Pepper's entire sentence and remanded for a de novo resentencing. See 518 F.3d, at 949, 953. Thus, even assuming, arguendo, that the original sentencing court's decision to impose a 40 percent departure was at one point law of the case, Pepper III effectively wiped the slate clean. To be sure, Pepper III vacated Pepper's 24-month sentence on grounds unrelated to the substantial assistance departure, but that fact does not affect our conclusion. "A criminal sentence is a package of sanctions that the district court utilizes to effectuate its sentencing intent." United States v. Stinson, 97 F.3d 466, 469 (C.A.11 1996) (per curiam). Because a district court's "original sentencing intent may be undermined by altering one portion of the calculus," United States v. White, 406 F.3d 827, 832 (C.A.7 2005), an appellate court when reversing one part of a defendant's sentence "may vacate the entire sentence ... so that, on remand, the trial court can reconfigure the sentencing plan ... to satisfy the sentencing factors in 18 U.S.C. § 3553(a)," Greenlaw v. United States, 554 U.S. 237, 253, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008). That is precisely what the Eighth Circuit did here.
Accordingly, because the Court of Appeals in Pepper III remanded for de novo resentencing, we conclude that Chief Judge Reade was not bound by the law of the case doctrine to apply the same 40 percent departure that had been applied at Pepper's prior sentencing.
For the reasons stated above, the judgment of the United States Court of Appeals for the Eighth Circuit is vacated in part and affirmed in part, and the case is remanded for resentencing consistent with this opinion.
It is so ordered.
Justice KAGAN took no part in the consideration or decision of this case.
Justice BREYER, concurring in part and concurring in the judgment.
I join Part III of the Court's opinion as to the second question presented. As to the first question presented, I agree with the Court's conclusion. And I agree with its opinion to the extent that it is consistent with this concurrence.
Like the majority, I believe Booker requires us to hold 18 U.S.C. § 3742(g)(2) unconstitutional. See ante, at 15-21; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); see also Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). And, like the majority, I believe that the law does not require a sentencing court to follow a Guideline policy statement that forbids taking account of postsentencing rehabilitation. United States Sentencing Commission, Guidelines Manual § 5K2.19 (Nov.2010) (USSG). I would emphasize,
The Guideline in question consists of a policy statement that sets forth an exception to normal Guideline rules. Normally, the Guidelines authorize a sentencing judge to consider a departure from an ordinary Guidelines sentence in any case "where conduct significantly differs from the norm" to which "a particular guideline linguistically applies." USSG ch. 1, pt. A1, § 4(b) (discussing the Guidelines' general approach to departures). The policy statement at issue is one of a handful of Guideline rules that nonetheless forbid departure. It says that a defendant's "[p]ost-sentencing rehabilitative efforts, even if exceptional, ... are not an appropriate basis for a downward departure when resentencing." USSG § 5K2.19. The policy statement thereby adds "Post-Sentencing Rehabilitative Efforts" to such factors as race, sex, national origin, creed, religion, and socioeconomic status, which the Guidelines absolutely prohibit the sentencing judge from taking into account. USSG ch. 1, pt. A1, § 4(b).
Can a sentencing court, despite this policy statement, take account of postsentencing rehabilitation in the particular circumstances that this case presents? I cannot find the answer to this question in the language of the sentencing statutes, in sentencing traditions, in the pre-Guidelines case of Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 S.Ct. 1337 (1949), or in this Court's use of the word "advisory." As the majority points out, a sentencing statute forbids any "`limitation'" on the "`information concerning the background, character, and conduct'" that "`a court... may ... consider.'" Ante, at 10 (quoting 18 U.S.C. § 3661 (emphasis deleted)). But this provision must refer to all relevant information. See USSG § 1B1.4 and comment. (generally incorporating § 3661, but noting that there are certain factors that should not be considered for any purpose). If the Guideline policy statement's absolute prohibition on consideration of postsentencing rehabilitation were legally binding, then information on that score (like information about race, religion, sex, or national origin) would fall outside the scope of this provision, for it would not be relevant. Thus, reference to the statute begs the question.
Nor can I find much help in the majority's reference to a sentencing "`tradition'" that considers "`every convicted person as an individual.'" Ante, at 9 (quoting Koon v. United States, 518 U.S. 81, 113, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). That is because individualized sentencing is not the only relevant tradition. A just legal system seeks not only to treat different cases differently but also to treat like cases alike. Fairness requires sentencing uniformity as well as efforts to recognize relevant sentencing differences. Indeed, when Congress enacted the sentencing statutes before us, it focused upon the unfair way in which federal sentencing failed to treat similar offenders similarly.
The Williams case is similarly unhelpful. That is because Congress in the Sentencing Reform Act of 1984—the law before us—disavowed the individualized approach to sentencing that that case followed. Williams emphasized the importance of a sentencing court's legal power to tailor punishment ability to fit the circumstances of each individual offender. 337 U.S., at 247, 69 S.Ct. 1079 (emphasizing "modern concepts individualizing punishment"). But Congress, concerned that individualized sentencing had gone too far, wrote a new sentencing law designed to help correct "disparities" among similar defendants sentenced by different judges. See S.Rep. No. 98-225, p. 45 (1983), U.S.Code Cong. & Admin.News 1984, p. 3182 ("Sentencing disparities" are "unfair both to offenders and to the public"); id., at 38 (disparities "can be traced directly to the unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence").
Booker's description of the Guidelines as "advisory" offers somewhat greater assistance—but only if that word is read in light of the Sixth Amendment analysis that precedes it. This Court has held that the Sixth Amendment forbids Congress (through the Commission) to create Guidelines that both (1) require judges (without juries) to find sentencing facts and also (2) tie those facts to the mandatory imposition of particular sentences. 543 U.S., at 226, 244, 125 S.Ct. 738; see also Apprendi, 530 U.S., at 490, 120 S.Ct. 2348 (Sixth Amendment requires jury findings in respect to factual matters that require judge to increase sentence); Blakely v. Washington, 542 U.S. 296, 303-304, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (same in respect to a State's mandatory guidelines). In light of this Sixth Amendment prohibition, the Court, believing that Congress would not have intended to introduce new juries into each sentencing proceeding, excised the few particular provisions of the sentencing statutes that specified that application of the Guidelines was mandatory. Booker, 543 U.S., at 259, 125 S.Ct. 738. The Court believed that the relevant statutes remained workable without those few provisions, that their excision could further Congress' basic sentencing intentions, and that excision was more likely to do so than invalidation of the entire statutory scheme. With an occasional exception (such as the statutory provision we strike down today), there is no reason to think that the sentencing statutes as limited in Booker run afoul of the Sixth Amendment. Ibid.
Booker made clear that the remaining statutory provisions, while leading us to call the Guidelines "advisory" (rather than "mandatory"), do not give a sentencing judge carte blanche to apply, or not to apply, the Guidelines as that judge chooses. Rather, the "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id., at 264, 125 S.Ct. 738. Moreover, Booker held that appellate court review of sentencing is valid. Booker explained that the "statutory language, the structure of the [Sentencing
We have also indicated that, in applying reasonableness standards, the appellate courts should take account of sentencing policy as embodied in the statutes and Guidelines, as well as of the comparative expertise of trial and appellate courts. Thus, in Kimbrough, we observed that in light of the "discrete institutional strengths" of the Sentencing Commission and sentencing judges, "a district court's decision to vary from the advisory Guidelines may attract greatest respect when the sentencing judge finds a particular case `outside the "heartland" to which the Commission intends individual Guidelines to apply.'" 552 U.S., at 109, 128 S.Ct. 558 (quoting Rita, supra, at 351, 127 S.Ct. 2456). We noted, however, that "while the Guidelines are no longer binding, closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range `fails properly to reflect § 3553(a) considerations' even in a mine-run case." 552 U.S., at 109, 128 S.Ct. 558.
Unlike the majority, I would decide the question Kimbrough left open. And I would follow its suggested framework for evaluating "reasonableness." As Kimbrough suggests, doing so takes proper account of the comparative institutional abilities of trial courts, appellate courts, and the Sentencing Commission. The trial court typically better understands the individual circumstances of particular cases before it, while the Commission has comparatively greater ability to gather information, to consider a broader national picture, to compare sentences attaching to different offenses, and ultimately to write more coherent overall standards that reflect nationally uniform, not simply local, sentencing policies.
Applying Kimbrough's suggested framework, I would reason very much as does the majority. The first question is whether a sentencing judge might sometimes take account of a (resentenced) offender's postsentencing rehabilitation—despite a Guideline policy statement that says never. I would find that it is reasonable for the judge to disregard the Guidelines' absolute prohibition, despite the Commission's comparatively greater policy-formation abilities. That is because the Guideline policy statement itself runs counter to ordinary Guideline sentencing policy, which rarely forbids departures and then for very strong policy reasons. Supra, at 2. See USSG ch. 1, pt. A1, § 4(b).
The Commission offers no convincing justification for creating this exception with respect to postsentencing rehabilitation. The Commission's commentary says that for a judge at resentencing to lower a sentence for this reason (reflecting good behavior while the case is on appeal) would conflict with the use of other mechanisms, such as "good-time" credits, for that purpose. But how is that so? A defendant,
The Commission's commentary also suggests it would be inequitable to allow an offender who is being resentenced to receive any kind of credit for his good behavior, say while his case was on appeal. But why is that so? After all, the Guidelines permit a judge to take account of an offender's good behavior after arrest but before initial sentencing. That time period could last longer than the time taken up on appeal. Why should pretrial behavior count but appeal time behavior not count? Like the majority, I find this justification for the policy statement unconvincing. See ante, at 25-26.
The second question is whether, given the sentencing court's power to disregard the policy statement forbidding departures based on postsentencing rehabilitation, the facts and circumstances here could warrant a departure (or variance) for that reason. And the answer, in my view, is yes. This case presents unusual rehabilitative circumstances. As the majority observes: "By the time of his second resentencing in 2009, Pepper had been drug-free for nearly five years, had attended college and achieved high grades, was a top employee at his job slated for a promotion, had reestablished a relationship with his father, and was married and supporting his wife's daughter." Ante, at 14. These are case-specific facts and circumstances, and they are of the kind that should lead appellate courts to show their "greatest respect" for a sentencing decision, including a departure or variance, that rests upon them.
In sum, the sentencing statutes, as we have interpreted them, require courts of appeals to review sentences for reasonableness, including sentences that depart or vary from a specific Guideline. The appellate courts should review those decisions more closely when they rest upon disagreement with Guidelines policy. Kimbrough, 552 U.S., at 109, 128 S.Ct. 558. They should review those decisions with greater deference when they rest upon case-specific circumstances that place the case outside a specific Guideline's "heartland." See ibid.; Rita, 551 U.S., at 351, 127 S.Ct. 2456; Koon, 518 U.S., at 98-99, 116 S.Ct. 2035.
By interpreting the sentencing statutes in this way, we can remain faithful to Congress' basic intent in writing them— despite the need to invalidate statutory provisions that conflict with the Sixth Amendment. The statutes create a Sentencing Commission with authority to develop sentencing policy embodied in the Guidelines. The Guidelines are to further the statutes' basic objective, namely greater sentencing uniformity, while also taking account of special individual circumstances, primarily by permitting the sentencing court to depart in nontypical cases. By collecting trial courts' reasons for departure (or variance), by examining appellate court reactions, by developing statistical and other empirical information, by considering the views of expert penologists and others, the Commission can revise the Guidelines accordingly. See USSG ch. 1, pt. A1, § 3. Trial courts, appellate courts, and the Commission all have a role to play in what is meant to be an iterative, cooperative institutional effort to bring about a more uniform and a more equitable sentencing system. See id., at 1-15. I would interpret the statutes before us accordingly.
I join Part III of the opinion of the Court. I agree with the Court that the decision below cannot be affirmed on the basis of 18 U.S.C. § 3742(g), as amicus suggests. This provision was designed to function as part of the mandatory Guidelines scheme that the Court struck down in United States v. Booker, 543 U.S. 220, 258-265, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Although amicus' argument is ingenious, even the sort of surgery sanctioned in Booker cannot transform this provision into one that can survive in the post-Booker world.
I also concur in the judgment to the extent that it holds that the decision below regarding evidence of postsentencing rehabilitation must be reversed. That decision, which entirely precluded consideration of such evidence, was consistent with the policy statement in § 5K2.19 of the United States Sentencing Guidelines, but "[t]he Booker remedial decision ... does not permit a court of appeals to treat the Guidelines' policy decisions as binding." Kimbrough v. United States, 552 U.S. 85, 116, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (ALITO, J., dissenting).
Under Booker, however, district judges are still required in almost all cases to give significant weight to the policy decisions embodied in the Federal Sentencing Guidelines. See 552 U.S., at 116, 128 S.Ct. 558; Gall v. United States, 552 U.S. 38, 61-67, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (ALITO, J., dissenting). Congress delegated to the Sentencing Commission the authority to make policy decisions regarding federal sentencing, see 18 U.S.C. §§ 3553(a)(4), (5), and requiring judges to give significant weight to the Commission's policy decisions does not run afoul of the Sixth Amendment right that the mandatory Guidelines system was found to violate, i.e., the right to have a jury make certain factual findings that are relevant to sentencing.
While I continue to believe that sentencing judges should be required to give significant weight to all Guidelines provisions and policy statements, see Kimbrough, 552 U.S., at 116, 128 S.Ct. 558 (opinion of ALITO, J.), the Court in Kimbrough held that sentencing judges may not be required to give weight to some unusual policy decisions, see id., at 109-110, 128 S.Ct. 558 (majority opinion). And Justice BREYER now makes a reasonable case that the particular policy statement involved in this case is distinguishable from almost all of the other rules that the Commission has adopted. See ante, p. 1252 (opinion concurring in part and concurring in judgment). His position seems to me more consistent with Kimbrough than the Court's. It would at least prevent us from sliding all the way down the slippery slope that leads back to the regime of entirely discretionary federal sentencing that preceded the enactment of the Sentencing Reform Act of 1984, 98 Stat. 1987.
Anyone familiar with the history of criminal sentencing in this country cannot fail to see the irony in the Court's praise for the sentencing scheme exemplified by Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 S.Ct. 1337 (1949), and 18 U.S.C. § 3661.
Some language in today's opinion reads like a paean to that old regime, and I fear that it may be interpreted as sanctioning a move back toward the system that prevailed prior to 1984. If that occurs, I suspect that the day will come when the irrationality of that system is once again seen, and perhaps then the entire Booker line of cases will be reexamined.
Justice THOMAS, dissenting.
I would affirm the Court of Appeals and uphold Pepper's sentence. As written, the Federal Sentencing Guidelines do not permit district courts to impose a sentence below the Guidelines range based on the defendant's postsentencing rehabilitation.
In United States v. Booker, 543 U.S. 220, 258-265, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court rendered the entire Guidelines scheme advisory, a remedy that was "far broader than necessary to correct constitutional error." Kimbrough v. United States, 552 U.S. 85, 114, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (THOMAS, J., dissenting). Because there is "no principled way to apply the Booker remedy," I have explained that it is "best to apply the statute as written, including 18 U.S.C. § 3553(b), which makes the Guidelines mandatory," unless doing so would actually violate the Sixth Amendment. Id., at 116, 128 S.Ct. 558; see Booker, supra, at 313-326, 125 S.Ct. 738 (THOMAS, J., dissenting in part); Gall v. United States, 552 U.S. 38, 61, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (THOMAS, J., dissenting); Irizarry v. United States, 553 U.S. 708, 717, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008) (THOMAS, J., concurring).
I would apply the Guidelines as written in this case because doing so would not violate the Sixth Amendment. The constitutional problem arises only when a judge makes "a finding that raises the sentence beyond the sentence that could have lawfully been imposed by reference to facts
Under a mandatory Guidelines regime, Pepper's sentence was proper. The District Court correctly calculated the Guidelines range, incorporated a USSG § 5K1.1 departure and the Government's motion under Federal Rule of Criminal Procedure 35(b), and settled on a 65-month sentence. Guideline § 5K2.19 expressly prohibits downward departures based on "[p]ost-sentencing rehabilitative efforts, even if exceptional." Nor is there any provision in the Guidelines for the "variance" Pepper seeks, as such variances are creations of the Booker remedy. I would therefore affirm the Court of Appeals' decision to uphold Pepper's sentence.
Although this outcome would not represent my own policy choice, I am bound by the choices made by Congress and the Federal Sentencing Commission. Like the majority, I believe that postsentencing rehabilitation can be highly relevant to meaningful resentencing. See ante, at 13-15. In light of Pepper's success in escaping drug addiction and becoming a productive member of society, I do not see what purpose further incarceration would serve. But Congress made the Guidelines mandatory, see 18 U.S.C. § 3553(b)(1), and authorized USSG § 5K2.19. I am constrained to apply those provisions unless the Constitution prohibits me from doing so, and it does not here.