                       United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-2287
                                     ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          * Appeal from the United States
      v.                                  * District Court for the Eastern
                                          * District of Missouri.
Roosevelt Sims, III,                      *
                                          *
             Appellant.                   *
                                     ___________

                              Submitted: January 12, 1999

                                   Filed: April 9, 1999
                                    ___________

Before RICHARD S. ARNOLD, HANSEN, and MORRIS SHEPPARD ARNOLD,
      Circuit Judges.
                           ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Roosevelt Sims, III, was convicted and sentenced in 1993 on charges of
possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1),
§ 841(b)(1)(A), and use of a firearm in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c). He was sentenced to 324 months imprisonment. In 1998, in
response to a motion under 28 U.S.C. § 2255, the district court1 dismissed Mr. Sims's


      1
       The Honorable Jean C. Hamilton, Chief United States District Judge for the
Eastern District of Missouri.
§ 924(c) conviction in light of Bailey v. United States, 516 U.S. 137 (1995), vacated
Mr. Sims's original sentence, and resentenced him to 292 months imprisonment.
Mr. Sims appeals the resentencing, and we affirm the judgment of the district court.

                                            I.
       At the resentencing hearing, Mr. Sims asked the district court to consider a
downward departure from the recommended sentencing range based on the
extraordinary efforts at rehabilitation that he asserts he has made in prison since his
original sentencing five years ago. The district court refused Mr. Sims's request
because it believed that it lacked the authority to consider post-sentencing
rehabilitation as a basis for downward departure. On appeal, Mr. Sims contends that
the district court erred in refusing his request.

       We have held that a defendant's post-offense rehabilitative conduct -- that is,
conduct from arrest up to the time of the sentencing – can, if sufficiently atypical,
furnish an appropriate basis for downward departure. United States v. Kapitzke, 130
F.3d 820, 822-24 (8th Cir. 1997). Mr. Sims now asks us to extend this holding to
permit downward departures based on post-sentencing rehabilitative conduct, as well
-- that is, rehabilitation that takes place behind the prison walls during the period
between the original sentencing and a resentencing.

       In support of his position, Mr. Sims directs our attention to cases from other
circuits that hold that post-sentencing rehabilitation can indeed provide an
appropriate basis for a downward departure at a resentencing. See United States v.
Green, 152 F.3d 1202, 1207-08 (9th Cir. 1998) (per curiam); United States v. Rhodes,
145 F.3d 1375, 1377-82 (D.C. Cir. 1998); and United States v. Core, 125 F.3d 74, 76-
79 (2d Cir. 1997), cert. denied, 118 S. Ct. 735 (1998). See also United States v.
Brock, 108 F.3d 31, 33-35 (4th Cir. 1997). Relying on the Supreme Court's decision
in Koon v. United States, 518 U.S. 81 (1996), these cases reason that post-sentencing



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rehabilitation may support a departure because consideration of this factor is not
specifically proscribed by the Sentencing Commission.

        We respectfully disagree with the other appellate courts that have examined
this issue. We do not think that Koon is controlling here. While there is language in
Koon that can be taken to support Mr. Sims's argument, its context disqualifies it for
application to the present situation. Cases cannot be read like statutes. Koon
addressed the matters that a district court may properly consider in departing from the
guidelines at an original sentencing. The Court never addressed the question of
whether post-sentencing events might support a departure at a resentencing because
that matter was not before it. We therefore do not think that Koon should be read to
require district courts to consider a defendant's post-sentencing rehabilitative conduct
as a basis for downward departure at resentencing.

       We believe, moreover, that a rule permitting a downward departure based on
post-sentencing rehabilitation makes little legal sense. First, such a rule, in our
opinion, contributes to the very disparity in sentencing that the Sentencing Reform
Act of 1984 and its subsequent amendments, see 18 U.S.C. §§ 3551-3586, seek to
prevent. It creates a situation in which a few lucky defendants, simply because of a
legal error in their original sentencing, receive a windfall in the form of a reduced
sentence for good behavior in prison. Other defendants, with identical or even
superior prison records, would be required to serve the entirety of their original
sentence with only the limited good-time credits available under 18 U.S.C. § 3624.
Permitting a downward departure based on post-sentencing rehabilitation thus
seriously undermines the Sentencing Reform Act's goal of "avoiding unwarranted
sentencing disparities among defendants with similar records who have been found
guilty of similar criminal conduct," see 28 U.S.C. § 991(b)(1)(B). Even if this were
not the avowed purpose of the Sentencing Reform Act, we would be more than a little
reluctant to embrace a rule that depended so heavily on a fortuity for its operation.



                                          -3-
       In fact, it may well be that the Sentencing Reform Act precludes a sentencing
court from considering post-conviction rehabilitation at resentencing. See United
States v. Rhodes, 145 F.3d at 1384 (Silberman, J., dissenting). In the Sentencing
Reform Act, Congress abolished the parole system and granted statutory authority to
the Bureau of Prisons to award limited good-time credits to prisoners who show
"exemplary compliance with institutional disciplinary regulations." See 18 U.S.C.
§ 3624(b)(1). In order to determine whether a defendant is eligible for a downward
departure for exemplary conduct in prison, a district court must make the very same
determination that Congress chose to place within the authority of the Bureau of
Prisons. Permitting a downward departure at a resentencing based on post-sentencing
rehabilitation thus may interfere with the Bureau of Prisons's statutory power to
award good-time credits to prisoners. See United States v. Rhodes, 145 F.3d at 1384
(Silberman, J., dissenting).

       Some of our prior decisions set forth what we believe is a sensible rule for
determining on what matters a district court may rely in departing from the guidelines
at a resentencing. " 'Once a sentence has been vacated or a finding related to
sentencing has been reversed and the case has been remanded for resentencing, the
district court can hear any relevant evidence on that issue that it could have heard at
the first hearing.' " United States v. Behler, 100 F.3d 632, 635 (8th Cir. 1996), cert.
denied, 118 S. Ct. 152 (1997), quoting United States v. Cornelius, 968 F.2d 703, 705
(8th Cir. 1992). Therefore, a defendant's rehabilitative efforts up to the time of the
original sentencing can and should be considered by the district court at a
resentencing. See United States v. Kapitzke, 130 F.3d at 823-24. Rehabilitation that
takes place behind the prison walls after the original sentencing, however, is not
relevant, since the sentencing court obviously could not have considered it at the time
of the original sentencing.

      We conclude that because a defendant's post-sentencing rehabilitative conduct
cannot be an appropriate basis for a downward departure at a resentencing of that

                                         -4-
defendant, the district court did not err in refusing to consider Mr. Sims's request for
such a departure.

                                           II.
      Mr. Sims also appeals from the district court's refusal to grant a continuance
so that his newly-retained counsel could prepare for and be involved in the
resentencing hearing. After carefully reviewing the transcript of the resentencing
hearing, we are satisfied that Mr. Sims was well represented by his appointed counsel,
who raised all of the issues that his retained counsel raises on appeal. We conclude
therefore that any error in refusing Mr. Sims's request was harmless.

      For the foregoing reasons, we affirm the judgment of the district court.

      A true copy.

             Attest:

                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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