United States v. Donald Ray Harris , 429 F. App'x 816 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14616 ELEVENTH CIRCUIT
Non-Argument Calendar MAY 24, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 6:07-cr-00065-ACC-KRS-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
DONALD RAY HARRIS,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(May 24, 2011)
Before HULL, PRYOR and MARTIN, Circuit Judges.
PER CURIAM:
Donald Ray Harris appeals his 120-month sentence, imposed after re-
sentencing, for possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). In light of the
Supreme Court’s recent decision in Pepper v. United States, ___ U.S. ___, 131 S.
Ct. 1229 (2011), which abrogated United States v. Lorenzo, 471 F.3d 1219 (11th
Cir. 2006), we vacate Harris’s sentence and remand for re-sentencing.
I.
“We review sentencing decisions only for abuse of discretion, and we use a
two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).
First, we “ensure that the district court committed no significant procedural error,
such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
explain the chosen sentence—including an explanation for any deviation from the
Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.
586, 597 (2007)). If we conclude that no procedural error occurred, “the second
step is to review the sentence’s ‘substantive reasonableness’ under the totality of
the circumstances, including ‘the extent of any variance from the Guidelines
range.’” Id. (quoting Gall, 552 U.S. at 51, 128 S. Ct. at 597). “[T]he party who
challenges the sentence bears the burden of establishing that the sentence is
unreasonable in the light of both [the] record and the factors in section 3553(a).”
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United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).
In now seeking remand for re-sentencing, Harris argues, as he did at his
sentencing hearing, that the district court should consider his post-sentence
rehabilitative conduct in determining his new sentence. When he received the 120-
month sentence which is the subject of this appeal, this Court’s precedent provided
that “post-sentence rehabilitative conduct [was] an impermissible factor for the
district court’s consideration.” Lorenzo, 471 F.3d at 1221. In Pepper, the Supreme
Court abrogated this Court’s opinion in Lorenzo, and held that “when a defendant’s
sentence has been set aside on appeal, a district court at resentencing may consider
evidence of the defendant’s postsentencing rehabilitation and . . . such evidence
may, in appropriate cases, support a downward variance from the now-advisory
Federal Sentencing Guidelines range.” 131 S. Ct. at 1236; see also United States v.
Smith, ___ F.3d ___, No. 09-13307, 2011 WL 1499229, *1 (11th Cir. Apr. 21,
2011) (recognizing that Lorenzo was abrogated by Pepper).
Although Lorenzo was binding precedent at the time of his re-sentencing
hearing, Harris contends that in light of Pepper the district court procedurally erred
by failing to consider his post rehabilitative conduct. The government argues in
response that any error by the district court was harmless. In imposing its sentence,
the district court stated: “The Court recognizes your significant rehabilitation in
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prison but feels that . . . 120 months is an appropriate sentence under the
circumstances.” Based on that statement, the government argues that the district
court did, in fact, consider Harris’s post-rehabilitative conduct but concluded that it
did not warrant a lesser sentence. See Williams v. United States, 503 U.S. 193,
203, 112 S. Ct. 1112, 1121 (1992) (“If the party defending the sentence persuades
the court of appeals that the district court would have imposed the same sentence
absent the erroneous factor, then a remand is not required.”).
After thorough review of the record, we vacate Harris’s sentence and remand
for re-sentencing. The district court’s statement regarding Harris’s post-
rehabilitative conduct is ambiguous. While the district court expressly recognized
Harris’s post rehabilitative conduct at re-sentencing, it is unclear from the record
whether the court actively considered that conduct in determining its sentence.
Given that our decision in Lorenzo was binding precedent at the time of Harris’s
re-sentencing, we will not infer that the district court gave consideration to a factor
that at the time was impermissible. See Lorenzo, 471 F.3d at 1221. For these
reasons, we vacate Harris’s sentence and remand for re-sentencing so that the
district court may consider his post-sentence rehabilitative conduct as permitted
under Pepper.
VACATED and REMANDED.
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