FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

 MARCH 3, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-12886

Non-Argument Calendar

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D. C. Docket No. 07-00001-CR-ORL-18-DAB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TROY NOLAN HARKNESS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(March 3, 2010)

Before EDMONDSON, BIRCH and KRAVITCH, Circuit Judges.

PER CURIAM:

Troy Nolan Harkness appeals his 110-month sentence for possession of a

firearm and ammunition by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1); and possession of body armor by a convicted felon, in violation of

18 U.S.C. § 931(a)(1). After a review of the record, we affirm.

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. The

guidelines calculations in the presentence investigation report (“PSI”) included

increases in the offense level and criminal history category because Harkness was a

career offender. At sentencing, the district court applied the 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. Appx. 578 (11th Cir. 2008) (unpublished).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.

The court acknowledged that Eleventh Circuit precedent did not permit it to

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consider post-sentencing rehabilitation, but stated that it found these facts 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. Harkness raised no other objections to his sentence. This appeal

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followed.

Harkness argues that by not considering his post-sentencing rehabilitation at

resentencing, the district court treated the guidelines as mandatory and imposed an

unreasonable sentence that failed to comply with the mandates of 18 U.S.C.

§ 3553(a). Harkness acknowledges, however, that this court has held that postsentencing rehabilitation is not a proper sentencing consideration. See United

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

In reviewing sentences for reasonableness, we perform two steps. United

States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008). First, we must “ensure that

the district court committed no significant procedural error, such as failing to

calculate (or improperly calculating) the Guidelines range, treating the Guidelines

 The government objected to the court’s consideration of Harkness’s post-sentencing 1

rehabilitation efforts. And, although it asserts that the district court arguably erred, it has not

cross-appealed the sentence imposed.

 We note that Harkness made no objection before the district court to the sentence 2

imposed. Arguably, then, he has not preserved any challenge to the reasonableness of his

sentence. This court has not yet decided whether plain error review is appropriate under these

circumstances, and we need not decide here because under either the abuse-of-discretion

standard or plain error review, Harkness’s claim fails.

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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.” Gall v.

United States, 552 U.S. 38, 51 (2007).

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If we conclude that the district court did not procedurally err, we must

consider the “‘substantive reasonableness of the sentence imposed under an

abuse-of-discretion standard,’” based on the “‘totality of the circumstances.’”

Pugh, 515 F.3d at 1190 (quoting Gall, 552 U.S. at 51). A sentence may be

substantively unreasonable if it does not achieve the purposes of sentencing stated

in 18 U.S.C. § 3553(a). Id. at 1191. A sentence within the guidelines range is

ordinarily expected to be reasonable. United States v. Talley, 431 F.3d 784, 788

(11th Cir. 2005).

The weight accorded to the § 3553(a) factors is left to the district court’s

discretion, and we will not substitute our judgment in weighing the relevant

factors. United States v. Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). “[T]he

 The § 3553(a) factors include: (1) the nature and circumstances of the offense and the 3

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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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).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)

(quotation and brackets omitted).

Upon review, we conclude that there is no merit to Harkness’s claim of

procedural error. Under the prior-panel-precedent rule, we are bound by prior

decisions of this court unless or until the decision is overruled by this court sitting

en banc or the Supreme Court. United States v. Kaley, 579 F.3d 1246, 1255 (11th

Cir. 2009). The rule applies even if a subsequent panel may believe the prior panel

was wrong. United States v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en

banc).

As Harkness concedes, this court has rejected the argument that a court

could consider post-sentencing rehabilitation at resentencing. United States v.

Lorenzo, 471 F.3d 1219, 1220-21 (11th Cir. 2006). Harkness has not identified

any case – and we have found none – overturning that precedent. Therefore,

Lorenzo controls, and Harkness’s argument is without merit.

We further conclude that Harkness failed to show the sentence imposed was

substantively unreasonable. The district court explained its reasons and discussed

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the § 3553(a) factors. Harkness has offered nothing to show this sentence was

unreasonable.

AFFIRMED.

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