RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0239p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-5951
v.
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JEFFREY WORLEY, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Tennessee at Winchester.
No. 02-00041—R. Allan Edgar, District Judge.
Argued: May 12, 2006
Decided and Filed: July 10, 2006
Before: DAUGHTREY and COOK, Circuit Judges; CARR, Chief District Judge.*
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COUNSEL
ARGUED: A. Christian Lanier III, Chattanooga, Tennessee, for Appellant. Perry H. Piper,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
ON BRIEF: A. Christian Lanier III, Chattanooga, Tennessee, for Appellant. Perry H. Piper,
ASSISTANT UNITED STATES ATTORNEY, Chattanooga, Tennessee, for Appellee.
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OPINION
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MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Jeffrey Worley, is before
this court for a second time, again contesting the sentence imposed on the basis of his guilty plea
to conspiracy to manufacture and distribute in excess of 50 grams of methamphetamine, in violation
of 21 U.S.C. §§ 841(a)(1) and 846. We affirmed his conviction and sentence at the time of his initial
appeal. See United States v. Worley, 100 Fed.Appx. 514 (6th Cir. 2004). However, the Supreme
Court granted certiorari, vacated our judgment, and remanded the case to us for reconsideration in
light of the Court’s simultaneously released decision in United States v. Booker, 543 U.S. 220
(2005), presumably because Worley was sentenced under guidelines that were considered mandatory
at the time, a scheme held to violate the Sixth Amendment in Booker. See Worley v. United States,
*
The Honorable James G. Carr, Chief United States District Judge for the Northern District of Ohio, sitting by
designation.
1
No. 05-5951 United States v. Worley Page 2
543 U.S. 1109 (2005). We, in turn, remanded the case to the district court for re-sentencing in
conformity with the Booker opinion.
The question now raised on appeal concerns the scope of the Booker remand. The defendant
insists that at his second sentencing hearing, the district court erred in failing to consider his
successful efforts at rehabilitation during almost three years that he was incarcerated prior to re-
sentencing, including the period that followed the original sentencing order. We conclude, as did
the district court, that our prior order directed a remand for the limited purpose of reviewing the
initial sentence to ensure that it did not violate the Sixth Amendment and that the order of remand
did not require or permit consideration of factors postdating the original sentencing hearing. We
therefore affirm the judgment of the district court.
At the re-sentencing hearing, Worley presented evidence concerning both his rehabilitative
accomplishments during his incarceration and the impact of his incarceration on his family,
providing the district court with items such as a letter from the landscape supervisor at the Big
Sandy Penitentiary, who described Worley as “one of those Inmates who has showed a great deal
of rehabilitation towards authority and working to correct being back in society”; a certificate of
completion of the prison’s drug education class; certificates of achievement in computer
keyboarding and Spanish; letters from family members; and petitions for leniency signed by various
community members. Worley specifically requested that, in view of this evidence, the district court
reduce his sentence from the 152 months originally imposed to the mandatory minimum sentence
of ten years required by 21 USC § 841(b), a reduction of almost three years.
Although praising Worley for his accomplishments in prison, the district court reimposed
the same sentence of 152 months, finding both that the sentence was appropriate, given the
circumstances of the offense and the defendant’s involvement, and that a reduction for post-
sentencing rehabilitation was not appropriate:
[A]t the time that you were doing this, you were a large producer of
methamphetamine in your area. In fact, I think that it’s safe to say that at that time
that you were one of the larger producers . . . .
I had sentenced you in the middle of the guidelines, and I’m looking back over it,
and I see here where you’ve got a situation where there were some firearms involved
in this. And I think that you are probably right in your assertion here that your
incarceration probably saved your life. And it may have saved some other people’s
lives too. You have firearms and you have a large amount of methamphetamine
around, that is a very dangerous mix.
.....
So, I have to look . . . basically at the facts as they existed at the time that I imposed
the sentence and determine whether or not in view of Booker and in view of the fact
that I have more flexibility, I have a little bit more flexibility now than I had then
should a different sentence be imposed.
In this case I would have to say that the sentence was right in the middle of the
guidelines, and I don’t really see any reason to impose any other sentence because,
certainly, I didn’t see a reason to impose any sentence that’s outside of the
guidelines.
.....
No. 05-5951 United States v. Worley Page 3
I really don’t think that it would be appropriate in this particular case anyway to
consider what you have done since you’ve been incarcerated. If I did that, we would
be, I would be, I might be changing a lot of sentences that people would come back
here for.
And I just think that the purpose of the Supreme Court’s decision in the Booker case
was to allow the Courts again to take another look at the sentence that was imposed
and see if that sentence was not appropriate under the circumstances at that time.
Because the United States Sentencing Guidelines may no longer be considered mandatory,
the district court’s responsibility under Booker is to calculate the presumptive sentencing range
under the guidelines and determine, applying the sentencing factors set out in 18 U.S.C. § 3553(a),
whether the appropriate sentence lies within that range or outside it. United States v. Stone, 432
F.3d 651, 655 (6th Cir. 2005). Following the dictates of Booker, we then review the district court’s
sentencing order for “reasonableness.” Booker, 543 U.S. at 260-61. But, as we noted in United
States v. Webb, reasonableness takes into account something more than just the length of the
sentence:
Instead, we read Booker as instructing appellate courts in determining reasonableness
to consider not only the length of the sentence but also the factors evaluated and the
procedures employed by the district court in reaching its sentencing determination.
Thus, we may conclude that a sentence is unreasonable when the district judge fails
to “consider” the applicable Guidelines range or neglects to “consider” the other
factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge
deems an appropriate sentence without such required consideration.
Webb, 403 F.3d 373, 383 (6th Cir. 2005) (footnote omitted). On the other hand, we have also noted
that although a sentence should reflect the considerations listed in § 3553(a), “‘[t]here is no
requirement that the district court . . . engage in a ritualistic incantation’ of the § 3553(a) factors it
considers,” as long as the district court supplies a rationale sufficiently detailed enough to reflect
the court’s considerations under § 3553(a). United States v. Chandler, 419 F.3d 484, 488 (6th Cir.
2005).
There is no question in this case that the district court made an ostensibly reasonable
assessment of the relevant factors under § 3553(a) – indeed, the district judge discussed virtually
every one of the factors listed in that section, including the nature and circumstances of the offense
and its “seriousness,” the “history and characteristics of the defendant” both as to his criminal
conduct and as to his addiction to methamphetamine, and the potential for “provid[ing] the
defendant with needed . . . training [and] medical care.” 18 U.S.C. § 3553(a). The defendant’s
post-sentencing conduct, which the district judge declined to consider, is not a factor listed in
§ 3553(a), although arguably it could be considered a part of a defendant’s “history and
characteristics.”
In point of fact, case law in this circuit previously permitted a sentencing court to depart
downward for extraordinary rehabilitative efforts between an original sentencing and subsequent
re-sentencing, but only under limited circumstances. See, e.g., United States v. Rudolph, 190 F.3d
720 (6th Cir. 1999) (post-sentence rehabilitation relevant “only after an appeal where there is a
remand for re-sentencing, a defendant successfully prosecutes a collateral attack, or in infrequent
occurrences such as the passage of a pertinent and retroactive amendment to the sentencing
guidelines”). Even that limited possibility was eliminated by the adoption of the policy statement
contained in United States Sentencing Guidelines § 5K2.19, which became effective on November
1, 2000, and which provides that “[p]ost-sentencing rehabilitative efforts, even if exceptional,
No. 05-5951 United States v. Worley Page 4
undertaken by a defendant after imposititon of a term of imprisonment . . . are not an appropriate
basis for downward departure when re-sentencing the defendant for th[e same] offense.”
At least one other circuit court that has considered this issue has held that in a Booker
remand:
. . . the conduct or circumstances that bear on the § 3553(a) factors must have been
in existence at the time the original sentence was imposed. In [the case under
review], the § 3553(a) factors raised by the defendants all involved matters occurring
after the date of sentencing. The goal of the [Booker] remand is to determine if, at
the time of sentencing, the district judge would have imposed a different sentence in
the absence of mandatory guidelines. Post-sentencing events or conduct simply are
not relevant to that inquiry.
United States v. Re, 419 F.3d 582, 584 (7th Cir. 2005). As a result, the court in Re held that, given
the limited nature of the remand, the defendants’ post-sentencing efforts at rehabilitation while
incarcerated were not relevant to rebut the presumption that their sentences – which fell within the
guideline range correctly calculated by the district court – met the reasonableness standard. Id. at
583-84.
The sentence in this case was likewise within a guideline range that was correctly calculated
by the district court and was reasonable when measured by the factors set out in § 3553(a). We
therefore AFFIRM the judgment of the district court incorporating its sentencing order.