                                                                      [DO NOT PUBLISH]


                 IN THE UNITED STATES COURT OF APPEALS
                                                                               FILED
                            FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                              ________________________ ELEVENTH CIRCUIT
                                                                          JULY 13, 2012
                                    No. 09-12886                           JOHN LEY
                                Non-Argument Calendar                        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
                           _________________________
                                    (July 13, 2012)

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).
         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, 131 S.Ct. 1229 (2011). United States v. Harkness, 449

F. App’x 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 F.

App’x. 578 (11th Cir. 2008) (unpublished).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




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district court to consider post-sentencing rehabilitation.2 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

resentencing, and concluded that we were bound by prior precedent. United States

v. Harkness, 367 F. 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, 1236 (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 F. App’x at 859.

Harkness then filed a petition for rehearing that is now before us.


      2
          See United States v. Lorenzo, 471 F.3d 1219, 1221 (11th Cir. 2006).

                                                3
      Having reconsidered our December 21 opinion, we grant the petition for

rehearing and vacate and remand for resentencing. 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 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.




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