PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 11-1580
_____________
UNITED STATES OF AMERICA
v.
SANTIAGO SALINAS-CORTEZ
Appellant
On appeal from the United States District Court
For the Eastern District of Pennsylvania
District Court No. 2-06-cr-0115-003
District Judge: The Honorable Juan R. Sanchez
Submitted Pursuant to Third Circuit L.A.R. 3.1(a)
October 4, 2011
Before: MCKEE, Chief Judge, FUENTES and COWEN
Circuit Judges
(Filed: November 8, 2011)
David L. McColgin, Esq.
Defender Association of
Philadelphia
Federal Court Division
601 Walnut Street
The Curtis Center, Suite 540
West
Philadelphia, PA 19106-0000
Counsel for Appellant
Kevin R. Brenner, Esq.
Office of United States
Attorney
Room 8122
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Bernadette A. McKeon, Esq.
Office of United States
Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
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OPINION
_______________
MCKEE, Chief Judge.
In United States v. Pepper, 562 U.S. ___, 131 S.Ct.
1229 (2011), the Supreme Court held that, once the original
sentence is set aside on appeal, a district court could
2
consider postsentencing rehabilitation in determining an
appropriate sentence on remand, unless the court ordering
the remand explicitly precludes consideration of such
evidence.
Here, we vacated Salinas-Cortez‟s original sentence
because the district court did not address his request for a
“minor role adjustment,” and we remanded for the district
court to consider that claim in calculating the applicable
range under the advisory Sentencing Guidelines. During the
sentencing hearing that followed, Salinas-Cortez also asked
the district court to consider the efforts he had made toward
rehabilitation since he was sentenced. The district court
refused to do so because the court believed that its authority
on remand was limited to addressing the request for a minor
role adjustment. After rejecting Salinas-Cortez‟s request to
consider his postsentencing rehabilitation, the court
reimposed the original sentence.
Approximately one week later, the Supreme Court
decided Pepper. We are now asked to decide if the district
court erred in rejecting evidence of postsentencing
rehabilitation as permitted in Pepper. For the reasons that
follow, we hold that the district court did err and we will
therefore vacate the sentence once again and remand for
resentencing.
I.
The district court initially sentenced Salinas-Cortez
after accepting his guilty plea to one count of conspiracy to
possess more than five kilograms of cocaine with intent to
distribute in violation of 21 U.S.C. § 846, and one count of
possession of five kilograms or more of cocaine with intent
to distribute in violation of 21 U.S.C. § 841(a)(1), (b)(1)(a)
and 18 U.S.C. § 2 (aiding and abetting).
At that sentencing, Salinas-Cortez requested a
sentence reduction of four levels (or in the alternative, two
levels) pursuant to U.S.S.G. § 3B1.2. The request was
based on his claim that he was a minimal and/or minor
participant in the distribution conspiracy, that he did not
3
have a decision-making role, and was not entitled to a
significant portion of the proceeds from the drug sales.1
The Presentence Report concluded that Salinas-
Cortez had been more than a minimal or minor participant
and that he was therefore not entitled to any reduction under
U.S.S.G. § 3B1.2. The district court adopted the
Presentence Report, but did not expressly rule on Salinas-
Cortez‟s request for a reduction as a minor participant. The
court then imposed a sentence of 156 months of
incarceration, and Salinas-Cortez appealed.
As we noted at the outset, on appeal, Salinas-Cortez
argued that the district court had committed procedural error
by not expressly ruling on his colorable request for a two-
level reduction. We agreed and vacated the sentence. In
doing so, we reaffirmed that a sentencing judge is free to
adopt the proposed findings in a Presentence Report. See
United States v. Sevilla, 541 F.3d 226, 229 (3d Cir. 2008).
However, we were concerned that “the record [did] not
clearly establish that the District Court [independently]
decided the two-level issue and intended the presentence
report to serve as an explanation of [the court's] ruling on
that issue[.]”
Salinas-Cortez does not now challenge the district
court‟s rejection of his request for a reduction for being a
minor participant. Rather, his sole argument here is that the
district court erred in refusing to consider any evidence of
his postsentencing rehabilitation on remand as permitted by
Pepper.
1
See U.S.S.G. § 3B1.2(a) and (b) (A defendant is
a “minimal participant” entitled to a four-level
reduction in sentencing if he is plainly among the
least culpable of those involved in the conduct
because he lacked sufficient knowledge or
understanding of the scope and structure of the
criminal enterprise. Alternatively, a defendant is a
“minor participant” entitled to a two-level
reduction in sentencing if he is less culpable than
most other participants but he can not be
considered a “minimal participant” in the criminal
enterprise.).
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II.
In Pepper, Jason Pepper pled guilty to conspiracy to
distribute 500 grams or more of methamphetamine in
violation of 21 U.S.C. §846. 131 S. Ct. at 1236. The
district court sentenced him to a 24-month prison term,
which was approximately a 75 percent downward departure
from the low end of the Guidelines range.2 Id. The
Government appealed the sentence and the Court of Appeals
for the Eighth Circuit reversed and remanded for
resentencing pursuant to United States. v. Booker, 543 U.S.
220 (2005). Id. However, Pepper served his sentence and
had been released prior to resentencing. Id.
At the subsequent resentencing hearing, Pepper
presented substantial evidence of postsentencing
rehabilitation, and the district court then reimposed the
original sentence of 24 months of imprisonment based on its
conclusion that no federal sentencing policy would be
advanced by returning Pepper to prison. Id. at 1237.
The Government again appealed arguing that the
sentence was too lenient, and the Court of Appeals again
reversed after concluding that the district court erred in
considering Pepper‟s postsentencing rehabilitation on
remand. Id.3 Pepper appealed, and the Supreme Court
2
“Pepper's sentencing range under the Guidelines was
97 to 121 months. The Government moved for a
downward departure pursuant to USSG § 5K1.1 based
on Pepper's substantial assistance and recommended a
15 percent downward departure.” See Pepper, 131 S.
Ct. at 1236.
3
The Supreme Court explained: “the Court of
Appeals rejected Pepper's argument that the District
Court erred in refusing to consider his postsentencing
rehabilitation. The court acknowledged that Pepper
made significant progress during and following his
initial period of imprisonment and commended
Pepper on the positive changes he has made in his
life, but concluded that Pepper's argument was
foreclosed by Circuit precedent [precluding reliance
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granted certiorari to decide two questions. The Court
defined the first of the two issues as: “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.” Id. at 1239.
In resolving that issue, the Supreme Court
emphasized that it “has long recognized that” “the fullest
information possible concerning the defendant‟s life and
characteristics” “is „highly relevant – if not essential – to the
selection of an appropriate sentence.‟” Id. at 1240 (quoting
Williams v. New York, 337 U.S. 241, 247 (1949)). Indeed,
as the Pepper Court explained, Congress codified this
principle at 18 U.S.C. § 3661, which provides that “no
limitation shall be placed on the [sentencing court‟s
consideration of] information concerning the background,
character, and conduct” of a defendant. Id. The Court also
noted that § 3553(a) requires consideration of a defendant‟s
history and characteristics. Id. at 1242.
The reason for such consideration is readily apparent.
Appropriate sentences can only be imposed when sentencing
courts “consider the widest possible breadth of information
about a defendant.” Id. at 1240. It is only then that we can
“ensure[] that the punishment will suit not merely the
offense but the individual defendant.” Id. As we have
previously explained, the now advisory Guideline range is
but one of many factors that must be considered if a court is
to properly impose a sentence that is tailored to the offender
rather than one that focuses only on the offense. See United
States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (When
sentencing, “it is essential that district courts make an
„individualized assessment based on facts presented.‟”)
(quoting Gall v. U.S., 552 U.S. 38, 50 (2007)).
upon] post-sentencing rehabilitation [as] a
permissible factor to consider in granting a
downward variance.” Id. At 1239 (internal citations
omitted).
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It is only by ensuring that the individual
circumstances of the defendant are not obliterated by the
offense that an individual‟s potential to successfully rejoin
society is maximized and the interest of public safety
advanced. Thus, “[i]t has been uniform and constant in the
federal judicial tradition for the sentencing judge to consider
every convicted person as an individual and every case as a
unique study in the human failings that sometimes mitigate,
sometimes magnify, the crime and the punishment to
ensue.” Koon v. United States, 518 U.S. 81, 113 (1996).
This bedrock principle predates enactment of the
Guidelines.
It should therefore not be surprising that a
defendant‟s postsentencing rehabilitation may illuminate a
defendant‟s character and assist the sentencing court in
assessing who the defendant is as well as who s/he may
become. Such information may, in some cases, be as
significant in ascertaining the defendant‟s character and
likelihood of recidivism as the defendant‟s conduct before
s/he was forced to account for his/her antisocial behavior.
See Pepper, 131 S. Ct. at 1242 (citing with approval United
States v. McMannus, 496 F.3d 846, 853 (8th Cir. 2007)
(Melloy, J., concurring) (“In assessing at least three of the
Section 3553(a) factors, 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.”)).
Consequently, the Court concluded that
postsentencing rehabilitation was a critical part of a
defendant‟s history that can be relevant in assessing the
likelihood of future criminal behavior. Pepper, 131 S. Ct.
at 1242; see also, 18 U.S.C. § 3553 (“A district court to
which a case is remanded . . . shall resentence a defendant in
accordance with section 3553.”).
Nevertheless, the Court in Pepper was also careful to
note that, where appropriate, a reviewing court retains the
authority to limit the scope of the sentencing hearing that
will occur on remand. Id. at 1249 n. 17. However, given
the Court‟s analysis, it is clear that such a limitation is the
exception and not the rule, and district courts should not
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infer any such limitation on remand. Rather, a limitation
precluding the consideration of postsentencing rehabilitation
must clearly appear on the face of the opinion or judgment
vacating the original sentence and remanding for
resentencing.
In explaining our decision and ordering the remand
here, we stated:
[W]e believe there was procedural error and on remand
the court should address Salinas–Cortez's request for a two-level
reduction as a minor participant in the offense. Of course, we
express no opinion on the proper determination. . . . For the
foregoing reasons, we will affirm the judgment of conviction,
vacate the sentence and remand for the District Court to consider
whether Salinas–Cortez was a “minor” participant under
U.S.S.G. § 3B1.2(b).
United States v. Salinas-Cortez, 403 F. App‟x. 686, 689 (3d
Cir. 2010).
Despite the Government‟s argument to the contrary,
this rather generic language is simply not sufficient to limit
the district court‟s ability to consider evidence of
postsentencing rehabilitation in fashioning an appropriate
sentence on remand. Accordingly, we will once again
vacate the sentence that was imposed and remand for
resentencing.
8