1The Honorable Jean C. Hamilton, Chief United States District Judge for the

Eastern District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 98-2287

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Eastern

* District of Missouri.

Roosevelt Sims, III, *

*

Appellant. *

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Submitted: January 12, 1999

Filed: April 9, 1999

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Before RICHARD S. ARNOLD, HANSEN, and MORRIS SHEPPARD ARNOLD,

Circuit Judges.

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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
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§ 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.
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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
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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.