USA v. Luther Wayne Smith

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
MAR 22, 2010
JOHN LEY
CLERK
[DO NOT PUBLISH]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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(March 22, 2010)
Before CARNES, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Luther Wayne Smith appeals his 100-month sentence, imposed after

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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.2d 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 (2005), Rita v. United States, 551 U.S. 338 (2007), Kimbrough v.
United States, 552 U.S. 85 (2007), Gall v. United States, 552 U.S. 38 (2007), and
Spears v. United States, 129 S. Ct. 840 (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).
AFFIRMED
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