[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 09-12886 DECEMBER 21, 2011
Non-Argument Calendar JOHN LEY
CLERK
________________________
D. C. Docket No. 07-00001-CR-ORL-18-DAB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY NOLAN HARKNESS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 21, 2011)
ON REMAND FROM UNITED STATES SUPREME COURT
Before EDMONDSON and KRAVITCH, Circuit Judges.*
*
Due to the retirement of Judge Birch in August 2010, this case is decided by quorum.
See
28 U.S.C. § 46(d).
PER CURIAM:
This case is before us for reconsideration in light of Pepper v. United States,
131 S.Ct. 1229 (2011).
Harkness was convicted of possession of a firearm and ammunition by a
convicted felon and possession of body armor by a convicted felon in 2007. At
sentencing, the district court applied a career-criminal enhancement and sentenced
Harkness to 210 months’ imprisonment. On appeal, this court vacated and
remanded for resentencing after concluding that the district court erred by applying
that sentencing enhancement. United States v. Harkness, 305 Fed. App’x. 578
(11th Cir. 2008) (unpublished).
Prior to resentencing, the probation officer submitted a supplemental
memorandum to reflect this court’s mandate. Without the career-criminal
enhancement, Harkness’s guidelines range was 110 to 137 months’ imprisonment.
Harkness urged the district court to consider a downward departure or variance
based on his “extraordinary rehabilitation while in prison,” including teaching
nutrition and fitness classes and a lack of disciplinary infractions.
The district court concluded that no variance or departure was warranted. At
the time, Eleventh Circuit precedent did not permit a district court to consider post-
sentencing rehabilitation, which the court recognized, but the court stated that it
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found these facts to be relevant to the sentence imposed under
18 U.S.C. § 3553(a).
After considering and discussing the § 3553(a) factors, the court sentenced
Harkness to 110 months’ imprisonment.
On appeal, we affirmed Harkness’s sentence, rejected Harkness’s argument
that the district court erred by not considering his post-sentencing rehabilitation at
resentencing, and concluded that we were bound by prior precedent in United
States v. Lorenzo,
471 F.3d 1219 (11th Cir. 2006). United States v. Harkness, 367
Fed. App’x. 973 (11th Cir. 2010).
On certiorari review, the Supreme Court vacated and remanded our decision
for reconsideration in light of its recent decision in Pepper v. United States,
131
S.Ct. 1229 (2011). In Pepper, the Supreme Court held that “when a defendant’s
sentence has been set aside on appeal, a district court at resentencing may consider
evidence of a defendant’s postsentencing rehabilitation and such evidence may, in
appropriate cases, support a downward variance from the now-advisory Federal
Sentencing Guidelines range.” Pepper,
131 S.Ct. at 1236.
Having reconsidered our previous opinion in light of Pepper, we conclude
that the district court properly sentenced Harkness. Nothing in Pepper requires the
court to reduce a sentence based on rehabilitative efforts. Id. at n.17. Here,
although the district court believed at Harkness’s resentencing that post-conviction
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rehabilitation was not a permissible basis for a deviation from the guidelines, the
court nevertheless considered it in the analysis of the § 3553(a) factors.2 See
Pepper,
131 S.Ct. at 1242 (explaining that post-sentencing rehabilitation can be
relevant to the § 3553(a) analysis). The court noted Harkness’s criminal history
and the circumstances of the offense and weighed these against Harkness’s
rehabilitation efforts to find that a sentence within the guideline range was
appropriate.
AFFIRMED.
2
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need for the sentence imposed to reflect the
seriousness of the offense, to promote respect for the law, and to provide just punishment for the
offense; (3) the need for the sentence imposed to afford adequate deterrence; (4) the need to
protect the public; (5) the need to provide the defendant with educational or vocational training
or medical care; (6) the kinds of sentences available; (7) the Sentencing Guidelines range; (8) the
pertinent policy statements of the Sentencing Commission; (9) the need to avoid unwanted
sentencing disparities; and (10) the need to provide restitution to victims.
18 U.S.C. § 3553(a).
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