                                                                      [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT            FILED
                              ________________________ U.S. COURT OF APPEALS
                                                                      ELEVENTH CIRCUIT
                                    No. 09-12886                      DECEMBER 21, 2011
                                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
                           _________________________

                                   (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(11th Cir. 2008) (unpublished).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 post-

sentencing 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).


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