USA v. Luther Wayne Smith

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
APR 21, 2011
JOHN LEY
CLERK
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-13307
Non-Argument Calendar
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D. C. Docket No. 06-00064-CR-FTM-29-DNF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUTHER WAYNE SMITH,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 21, 2011)
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:

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Luther Wayne Smith appealed his 100-month sentence, imposed after re-
sentencing, for possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1). This Court affirmed Smith’s sentence based on prior
precedent. United States v. Smith, 370 F. App’x 59 (11th Cir. 2010). However,
the Supreme Court granted Smith’s petition for writ of certiorari, vacated the
judgment, and remanded Smith’s appeal for reconsideration in light of Pepper v.
United States, 562 U.S. __, 131 S. Ct. 1229 (2011). Smith v. United States, __
U.S. __, 131 S. Ct. 1598 (2011).
On remand for re-sentencing, Smith argued that the district court should
consider his post-sentence rehabilitative conduct in determining his new sentence.
The district court expressly rejected consideration of Smith’s post-sentence
rehabilitation in its sentencing calculus, stating that it was prohibited from doing so
by this Court’s decision in United States v. Lorenzo, 471 F.3d 1219, 1221 (11th
Cir. 2006) (holding that “post-sentence rehabilitative conduct is an impermissible
factor for the district court’s consideration” at sentencing). We affirmed on the
same grounds.
In Pepper, however, 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
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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. Pepper makes clear that a district court may consider
post-sentence rehabilitative conduct at re-sentencing.
In light of Pepper, we vacate our prior opinion in this case, United
States v. Smith, 370 F. App’x 59 (11th Cir. 2010), vacate Smith’s sentence,
and remand for re-sentencing so that the district court may consider Smith’s
post-sentence rehabilitative conduct as permitted under Pepper.
PRIOR DECISION VACATED; SENTENCE VACATED, and
REMANDED.
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