Eighth Circuit reverses below guideline sentence again

As Yogi Berra might say, it’s deja vu all over again:  the Eighth Circuit today in US v. Pepper, No. 06-2453 (8th Cir. May 21, 2007) (available here), reverses for the second time a below-guideline sentence in a drug case.  Here is the first paragraph of the new opinion:

This case returns after a remand to the district court for resentencing.  In United States v. Pepper, 412 F.3d 995, 999 (8th Cir. 2005) (Pepper I), we held the district court erred by granting a 75% downward departure for substantial assistance and imposing a sentence of 24 months’ imprisonment, because the district court erroneously based the extent of the departure on matters unrelated to Jason Pepper’s (Pepper) assistance.  On remand, the district court granted a 40% downward departure (five offense levels) for substantial assistance, followed by a 59% downward variance (eight offense levels), and again imposed a sentence of 24 months’ imprisonment. The government appeals. We reverse.

The Eighth Circuit ultimately upholds the departure portion of the sentence, but concludes “the district court abused its discretion in granting the downward variance.”  It also requires this hot Pepper case to be assigned to a new district judge for resentencing.