                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0904n.06
                           Filed: December 18, 2006

                                           No. 05-4644

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                )
                                                         )        ON APPEAL FROM THE
       Plaintiff-Appellant,                              )        UNITED STATES DISTRICT
                                                         )        COURT     FOR    THE
v.                                                       )        SOUTHERN DISTRICT OF
                                                         )        OHIO
MARK SMITH,                                              )
                                                         )            MEMORANDUM
       Defendant-Appellee.                               )              OPINION




BEFORE: COLE and McKEAGUE, Circuit Judges; and BREEN, District Judge.*

       McKEAGUE, Circuit Judge. Defendant Mark Smith pleaded guilty to possession with

intent to distribute more than 50 grams of crack cocaine. He was originally sentenced on February

27, 2004, to a prison term of 188 months, at the low end of the then mandatory sentencing guidelines

range. The sentence was vacated by this court on June 15, 2004, pursuant to United States v. Booker,

543 U.S. 220 (2005). On re-sentencing, October 28, 2005, the district court exercised its discretion

to vary from the now advisory guidelines range and imposed the mandatory minimum sentence of

120 months.

       In imposing sentence, the district court noted the 188 to 235-month advisory guidelines range

and expressly mentioned the 18 U.S.C. § 3553(a) factors it was obliged to consider.

_________________________
No. 05-4644
United States v. Smith
      * The Honorable J. Daniel Breen, United States District Judge for the Western District of
Tennessee, sitting by designation.
Notwithstanding these considerations, the district judge opined “that a ten-year sentence is either

going to correct the situation or it’s hopeless.” The district judge’s only explanation for the 68-

month variance: “I do believe that your efforts at rehabilitation exceed the norm, and that takes your

case out of the heartland of cases that have been taken into account by the Sentencing Commission.”

          On appeal, the government contends this explanation is not supported by the record and is

insufficient to justify the maximum possible variance. The resulting sentence is said to be

substantively unreasonable. We agree.

          The district court’s sentence must be upheld unless it is found to be either procedurally or

substantively unreasonable. United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006). A

sentence may be held procedurally unreasonable if the district court (1) did not appreciate the non-

mandatory nature of the guidelines, (2) did not correctly calculate the sentencing range under the

guidelines, or (3) did not consider the 18 U.S.C. § 3553(a) factors. United States v. Davis, 458 F.3d

491, 495 (6th Cir. 2006). Here, there is no question but that the district court imposed a

mechanically correct sentence. The government does not argue that the sentence is procedurally

unreasonable in any of these three ways.

          A sentence may be held substantively unreasonable if the district court (1) selected the

sentence arbitrarily, (2) based the sentence on impermissible factors, or (3) gave an unreasonable

amount of weight to a pertinent factor. Collington, 461 F.3d at 808. The government contends the

sentence is substantively unreasonable because the district court erred by relying on an impermissible

factor.

                                                  -2-
No. 05-4644
United States v. Smith
       The only explicit justification for the district court’s variance from the undisputed advisory

guidelines range is its reliance on Smith’s post-sentencing rehabilitation efforts, which it

characterized as “exceeding the norm.” The government correctly contends this is an impermissible

consideration. In United States v. Worley, 453 F.3d 706 (6th Cir. 2006), the Sixth Circuit made it

clear that when a defendant is re-sentenced pursuant to a Booker remand, “post-sentencing events

or conduct simply are not relevant.” Id. at 709 (quoting United States v. Re, 419 F.3d 582, 584 (7th

Cir. 2005)). This is because the goal of the Booker remand for re-sentencing is to determine

whether, at the time of the original sentencing, the district judge would have imposed a different

sentence in the absence of mandatory guidelines. Id.1 It is thus apparent that the district court’s only

explicit justification for the 68-month variance from the guidelines range is an impermissible




        1
         Worley was decided some eight months after Smith’s re-sentencing, but the ruling was based
in part on U.S.S.G. § 5K2.19, effective November 1, 2000, which provides:

       Post-sentencing rehabilitative efforts, even if exceptional, undertaken by a defendant
       after imposition of a term of imprisonment for the instant offense are not an
       appropriate basis for a downward departure when resentencing the defendant for that
       offense.


                                                 -3-
No. 05-4644
United States v. Smith
consideration.2 The district court’s reliance on Smith’s post-sentencing rehabilitation efforts was

in error and renders the sentence substantively unreasonable.

       Accordingly, the judgment of sentence is VACATED and the matter is REMANDED once

again to the district court for re-sentencing.




       2
        In support of his argument that rehabilitation efforts do represent a permissible factor, Smith
cites United States v. Allman, 119 F. App’x 751 (6th Cir. 2005) (unpublished). Allman is inapposite.
In Allman, the court observed that “[o]nly exceptional rehabilitation can support downward
departure.” 119 F. App’x at 755. The court was referring, however, to post-offense, pre-sentencing
conduct; not the sort of post-sentencing conduct at issue here and in Worley.
        Moreover, although the extent of Allman’s rehabilitation efforts is not defined in the court’s
opinion, the court held that his efforts were not atypical or exceptional and did not warrant a
downward departure. Here, too, the unsubstantiated representations that Smith has taken advantage
of vocational training opportunities made available by the Bureau of Prisons hardly suggest
“exceptional” rehabilitation efforts.

                                                 -4-
