[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12886 ELEVENTH CIRCUIT
MARCH 3, 2010
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
_________________________
(March 3, 2010)
Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.
PER CURIAM:
Troy Nolan Harkness appeals his 110-month sentence for possession of a
firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1); and possession of body armor by a convicted felon, in violation of
18 U.S.C. § 931(a)(1). After a review of the record, we affirm.
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. The
guidelines calculations in the presentence investigation report (“PSI”) included
increases in the offense level and criminal history category because Harkness was a
career offender. At sentencing, the district court applied the 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. Appx. 578 (11th Cir. 2008) (unpublished).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.
The court acknowledged that Eleventh Circuit precedent did not permit it to
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consider post-sentencing rehabilitation, but stated that it 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.1 Harkness raised no other objections to his sentence.2 This appeal
followed.
Harkness argues that by not considering his post-sentencing rehabilitation at
resentencing, the district court treated the guidelines as mandatory and imposed an
unreasonable sentence that failed to comply with the mandates of 18 U.S.C.
§ 3553(a). Harkness acknowledges, however, that this court has held that post-
sentencing rehabilitation is not a proper sentencing consideration. See United
States v. Lorenzo, 471 F.3d 1219 (11th Cir. 2006).
In reviewing sentences for reasonableness, we perform two steps. United
States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we must “ensure that
the district court committed no significant procedural error, such as failing to
calculate (or improperly calculating) the Guidelines range, treating the Guidelines
1
The government objected to the court’s consideration of Harkness’s post-sentencing
rehabilitation efforts. And, although it asserts that the district court arguably erred, it has not
cross-appealed the sentence imposed.
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We note that Harkness made no objection before the district court to the sentence
imposed. Arguably, then, he has not preserved any challenge to the reasonableness of his
sentence. This court has not yet decided whether plain error review is appropriate under these
circumstances, and we need not decide here because under either the abuse-of-discretion
standard or plain error review, Harkness’s claim fails.
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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.” Gall v.
United States, 552 U.S. 38, 51 (2007).3
If we conclude that the district court did not procedurally err, we must
consider the “‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’”
Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). A sentence may be
substantively unreasonable if it does not achieve the purposes of sentencing stated
in 18 U.S.C. § 3553(a). Id. at 1191. A sentence within the guidelines range is
ordinarily expected to be reasonable. United States v. Talley, 431 F.3d 784, 788
(11th Cir. 2005).
The weight accorded to the § 3553(a) factors is left to the district court’s
discretion, and we will not substitute our judgment in weighing the relevant
factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). “[T]he
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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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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).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)
(quotation and brackets omitted).
Upon review, we conclude that there is no merit to Harkness’s claim of
procedural error. Under the prior-panel-precedent rule, we are bound by prior
decisions of this court unless or until the decision is overruled by this court sitting
en banc or the Supreme Court. United States v. Kaley, 579 F.3d 1246, 1255 (11th
Cir. 2009). The rule applies even if a subsequent panel may believe the prior panel
was wrong. United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en
banc).
As Harkness concedes, this court has rejected the argument that a court
could consider post-sentencing rehabilitation at resentencing. United States v.
Lorenzo, 471 F.3d 1219, 1220-21 (11th Cir. 2006). Harkness has not identified
any case – and we have found none – overturning that precedent. Therefore,
Lorenzo controls, and Harkness’s argument is without merit.
We further conclude that Harkness failed to show the sentence imposed was
substantively unreasonable. The district court explained its reasons and discussed
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the § 3553(a) factors. Harkness has offered nothing to show this sentence was
unreasonable.
AFFIRMED.
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