The Champion

March 2011 , Page 38 

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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 wasn’t clear).3 

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Are you familiar with those late-night infomercials that promise the latest wonder gadget for the low, low p

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