USA v. Troy Nolan Harkness, No. 09-12886 (11th Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 3, 2010.
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[DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT FILED ________________________ U.S. COURT OF APPEALS No. 09-12886 Non-Argument Calendar ________________________ ELEVENTH CIRCUIT DECEMBER 21, 2011 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) Before EDMONDSON and KRAVITCH, Circuit Judges.* PER CURIAM: * Due to the retirement of Judge Birch in August 2010, this case is decided by quorum. See 28 U.S.C. § 46(d). 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 App x. 578 (11th Cir. 2008) (unpublished).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 postsentencing rehabilitation, which the court recognized, but the court stated that it found these facts to be relevant to the sentence imposed under 18 U.S.C. § 3553(a). 2 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 rehabilitation was not a permissible basis for a deviation from the guidelines, the 3 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). 4
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