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Significant Decisions Report
Please do not rely solely on the summaries set forth below. The reader is advised to read the
full text of each opinion in addition to the brief synopses provided.
The Significant Decisions Report is published in Voice for the Defense thanks to a state
grant from the Judicial and Court Personnel Training Fund, administered by the Texas Court of
Criminal Appeals. Back issues online.
Supreme Court
Pepper v. United States, 131 S. Ct. 1229 (U.S. 2011); Vacated in part, affirmed in part &
remanded: Sotomayor (6–2)
Jason Pepper pleaded guilty in a federal district court to conspiracy to distribute 500 grams or
more of a substance containing meth. In the latest of a series of appeals and remands, a newly assigned
Iowa federal district court sentenced Pepper to 77 months in prison and 12 months supervised release—a
20 percent downgrade from the Federal Sentencing Guidelines advisory range. Thereafter,
the district court granted the government’s motion to reduce Pepper’s sentence further to 65 months
because of assistance Pepper provided after he was initially sentenced. Pepper appealed, arguing in
part that the district court should consider evidence of his post-sentence rehabilitation to reduce his
sentence further. The Eighth Circuit affirmed Pepper’s sentence, holding in part that evidence of a
defendant’s post-sentence rehabilitation was not relevant at resentencing.
HELD: When the defendant’s sentence has been set aside on appeal, a district court at resentencing
may consider evidence of the defendant’s rehabilitation after the initial sentences; and that evidence
may, in appropriate cases, support a downward variance from the sentencing guidelines. Because the
Eighth Circuit set aside Pepper’s entire sentence and remanded for de novo resentencing, the district
court was not bound by the law of the case doctrine to apply the same 40 percent departure applied
by the original sentencing judge. To avoid undermining a district court’s original sentencing intent,
an appellate court when reversing one part of a sentence may vacate the entire sentence so that, on
remand, the trial court can reconfigure the sentencing plan to satisfy 18 U.S.C.S. § 3553(a)’s sentencing
factors. That is what the Eighth Circuit did here.
Michigan v. Bryant, 131 S. Ct. 1143 (U.S. 2011); Reversed & remanded: Sotomayor (6–2)
A trial court convicted Richard Perry Bryant of second-degree murder, being a felon in possession
of a firearm, and possession of a firearm during commission of a felony. On appeal, Bryant
challenged the admission of the victim’s statements at trial for violating his Sixth Amendment right
of confrontation. The victim stated that Bryant shot him, but died shortly thereafter. The Michigan
Supreme Court reversed, holding that the statements that the victim made to police before his death
were testimonial and their admission violated Bryant’s right to confrontation. The court reasoned
that the victim’s statements were made in the course of a police interrogation whose primary purpose
was to establish or prove events that had already occurred, not to enable police to meet an ongoing
emergency. Therefore, the statements were “testimonial” for the purposes of the enhanced confrontation
protections set forth in Crawford v. Washington, 541 U.S. 36 (2004), and should not have been
admitted against Bryant because he did not have the opportunity to cross-examine the victim prior
to his death.
HELD: Inquiries of wounded victims concerning the perpetrator are non-testimonial if they
ob jectively indicate that the purpose of the interrogation is to enable police assistance to meet an
ongoing emergency, and, thus, not afforded heightened protection under Crawford. The identification
and description of the shooter and the location of the shooting were “not testimonial statements
because they had a ‘primary purpose . . . to enable police assistance to meet an ongoing emergency.’