[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 13, 2012
No. 09-12886 JOHN LEY
Non-Argument Calendar 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
_________________________
(July 13, 2012)
ON PETITION FOR REHEARING
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:
On December 21, 2011, this court issued an opinion affirming Harkness’s
sentence after the Supreme Court remanded his appeal for reconsideration in light
of Pepper v. United States, 131 S.Ct. 1229 (2011). United States v. Harkness, 449
F. App’x 858 (11th Cir. 2011). Harkness filed a petition for rehearing. We grant
the petition, vacate the December 21 opinion, and substitute this opinion in its
place.
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 and
sentenced to 210 months’ imprisonment as a career criminal. 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 F.
App’x. 578 (11th Cir. 2008) (unpublished).
At resentencing, the court noted that Harkness’s guidelines range without the
enhancement 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 because Eleventh Circuit precedent did not permit a
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district court to consider post-sentencing rehabilitation.2 But the court stated that it
found Harkness’s conduct 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. United States
v. Harkness, 367 F. 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, 1236 (2011)
(holding 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.”).
On remand, we affirmed the sentence imposed, concluding that the district
court did consider Harkness’s rehabilitative conduct under the sentencing factors in
§ 3553(a), and that this was sufficient under Pepper. 449 F. App’x at 859.
Harkness then filed a petition for rehearing that is now before us.
2
See United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).
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Having reconsidered our December 21 opinion, we grant the petition for
rehearing and vacate and remand for resentencing. A thorough review of the
record shows that the district court’s statements regarding Harkness’s rehabilitative
conduct were ambiguous. Although the court considered Harkness’s conduct when
evaluating the appropriate sentence under the factors in 18 U.S.C. § 3553(a), the
court also stated that under our precedent it could not consider such conduct in
determining the advisory guideline range. Thus, we cannot determine whether
Harkness would have faced a lower sentence had the court known it could consider
a downward variance based on rehabilitative conduct. For these reasons, we vacate
and remand for resentencing so that the district court may consider Harkness’s
post-sentence rehabilitative conduct under Pepper.
VACATED and REMANDED.
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