Opinion
No. 09-13307 Non-Argument Calendar.
March 22, 2010.
George Allen Couture, Donna Lee Elm, James W. Smith, III, Federal Public Defender, Orlando, FL, for Defendant-Appellant.
Susan Hollis Rothstein-Youakim, U.S. Attorney's Office, Tampa, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Middle District of Florida. D.C. Docket No. 06-00064-CR-FTM-29-DNF.
Before CARNES, BARKETT and MARCUS, Circuit Judges.
Luther Wayne Smith appeals his 100-month sentence, imposed after resentencing, for possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Smith argues that the district court should have considered Smith's post-sentencing rehabilitation. Basing his ruling entirely on this circuit's decision in United States v. Lorenzo, 471 F.3d 1219 (11th Cir. 2006), which precluded consideration of post-sentencing conduct, the district court declined to consider Smith's post-sentencing conduct. We agree that Lorenzo controls this issue. Smith is nonetheless correct that there is a question as to whether Lorenzo continues to be good law in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), and Spears v. United States, ___ U.S. ___, 129 S.Ct. 840, 172 L.Ed.2d 596 (2009). Nonetheless, our circuit's prior precedent rule bars us from overruling Lorenzo without en banc consideration. See U.S. v. Steele, 147 F.3d 1316, 1317-18 (11th Cir. 1998) (en banc).