                                                                   [DO NOT PUBLISH]

                        IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                ________________________                  FILED
                                                                 U.S. COURT OF APPEALS
                                       No. 10-14616                ELEVENTH CIRCUIT
                                   Non-Argument Calendar               MAY 24, 2011
                                 ________________________               JOHN LEY
                                                                         CLERK
                          D.C. Docket No. 6:07-cr-00065-ACC-KRS-1

UNITED STATES OF AMERICA,

lllllllllllllllllllll                                                    Plaintiff-Appellee,
                                               versus

DONALD RAY HARRIS,

lllllllllllllllllllll                                              Defendant-Appellant.

                                ________________________

                          Appeal from the United States District Court
                              for the Middle District of Florida
                                ________________________

                                        (May 24, 2011)

Before HULL, PRYOR and MARTIN, Circuit Judges.

PER CURIAM:

         Donald Ray Harris appeals his 120-month sentence, imposed after re-

sentencing, for possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e)(1). In light of the

Supreme Court’s recent decision in Pepper v. United States, ___ U.S. ___, 131 S.

Ct. 1229 (2011), which abrogated United States v. Lorenzo, 471 F.3d 1219 (11th

Cir. 2006), we vacate Harris’s sentence and remand for re-sentencing.

                                          I.

      “We review sentencing decisions only for abuse of discretion, and we use a

two-step process.” United States v. Shaw, 560 F.3d 1230, 1237 (11th Cir. 2009).

First, we “ensure that the district court committed no significant procedural error,

such as failing to calculate (or improperly calculating) the Guidelines range,

treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,

selecting a sentence based on clearly erroneous facts, or failing to adequately

explain the chosen sentence—including an explanation for any deviation from the

Guidelines range.” Id. (quoting Gall v. United States, 552 U.S. 38, 51, 128 S. Ct.

586, 597 (2007)). If we conclude that no procedural error occurred, “the second

step is to review the sentence’s ‘substantive reasonableness’ under the totality of

the circumstances, including ‘the extent of any variance from the Guidelines

range.’” Id. (quoting Gall, 552 U.S. at 51, 128 S. Ct. at 597). “[T]he party who

challenges the sentence bears the burden of establishing that the sentence is

unreasonable in the light of both [the] record and the factors in section 3553(a).”

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United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

      In now seeking remand for re-sentencing, Harris argues, as he did at his

sentencing hearing, that the district court should consider his post-sentence

rehabilitative conduct in determining his new sentence. When he received the 120-

month sentence which is the subject of this appeal, this Court’s precedent provided

that “post-sentence rehabilitative conduct [was] an impermissible factor for the

district court’s consideration.” Lorenzo, 471 F.3d at 1221. In Pepper, the Supreme

Court abrogated this Court’s opinion in Lorenzo, and held that “when a defendant’s

sentence has been set aside on appeal, a district court at resentencing may consider

evidence of the defendant’s postsentencing rehabilitation and . . . such evidence

may, in appropriate cases, support a downward variance from the now-advisory

Federal Sentencing Guidelines range.” 131 S. Ct. at 1236; see also United States v.

Smith, ___ F.3d ___, No. 09-13307, 2011 WL 1499229, *1 (11th Cir. Apr. 21,

2011) (recognizing that Lorenzo was abrogated by Pepper).

      Although Lorenzo was binding precedent at the time of his re-sentencing

hearing, Harris contends that in light of Pepper the district court procedurally erred

by failing to consider his post rehabilitative conduct. The government argues in

response that any error by the district court was harmless. In imposing its sentence,

the district court stated: “The Court recognizes your significant rehabilitation in

                                           3
prison but feels that . . . 120 months is an appropriate sentence under the

circumstances.” Based on that statement, the government argues that the district

court did, in fact, consider Harris’s post-rehabilitative conduct but concluded that it

did not warrant a lesser sentence. See Williams v. United States, 503 U.S. 193,

203, 112 S. Ct. 1112, 1121 (1992) (“If the party defending the sentence persuades

the court of appeals that the district court would have imposed the same sentence

absent the erroneous factor, then a remand is not required.”).

      After thorough review of the record, we vacate Harris’s sentence and remand

for re-sentencing. The district court’s statement regarding Harris’s post-

rehabilitative conduct is ambiguous. While the district court expressly recognized

Harris’s post rehabilitative conduct at re-sentencing, it is unclear from the record

whether the court actively considered that conduct in determining its sentence.

Given that our decision in Lorenzo was binding precedent at the time of Harris’s

re-sentencing, we will not infer that the district court gave consideration to a factor

that at the time was impermissible. See Lorenzo, 471 F.3d at 1221. For these

reasons, we vacate Harris’s sentence and remand for re-sentencing so that the

district court may consider his post-sentence rehabilitative conduct as permitted

under Pepper.

      VACATED and REMANDED.

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