United States v. Troy Nolan Harkness

ON PETITION FOR REHEARING 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, — U.S. -, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). United States v. Harkness, 449 Fed.Appx. 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 United States v. Harkness, 305 Fed.Appx. 578 (11th Cir.2008) (unpublished).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 district court to consider post-sentencing rehabilitation. 1 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 resen-tencing, and concluded that we were bound by prior precedent. United States v. Harkness, 367 Fed.Appx. 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, — U.S. -, 131 S.Ct. 1229, 1236, 179 L.Ed.2d 196 (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 Fed.Appx. at 859. Harkness then filed a petition for rehearing that is now before us. Having reconsidered our December 21 opinion, we grant the petition for rehearing and vacate and remand for resentenc-ing. 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 *560 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. Footnotes [1] See United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir.2006).