Case: 12-14861   Date Filed: 12/27/2013   Page: 1 of 4


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-14861
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 4:91-cr-00111-BAE-GRS-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

HERBERT NATHANIEL JOHNSON,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                  for the Southern District of Georgia
                     ________________________

                            (December 27, 2013)



Before WILSON, ANDERSON and BLACK, Circuit Judges.

PER CURIAM:
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       Federal prisoner Herbert Nathaniel Johnson, proceeding pro se, appeals from

the district court’s denial of his motion to reduce sentence, filed pursuant to 18

U.S.C. § 3582(c)(2). The district court concluded Johnson was eligible for a

sentence reduction, but nevertheless declined to resentence him. Johnson asserts

that, in declining to resentence him, the district court impermissibly relied on the

factor of future rehabilitation and failed to consider evidence of his rehabilitation

since his initial sentencing. Johnson also contends that, in making those errors, the

court must have utilized the incorrect edition of the Sentencing Guidelines. After

review, 1 we affirm the district court’s denial of Johnson’s § 3582(c)(2) motion.

       Congress has codified the principle that it is inappropriate for a sentencing

court to “impos[e] a sentence to a term of imprisonment for the purpose of

rehabilitating the defendant . . . .” 28 U.S.C. § 994(k); see also 18 U.S.C.

§ 3582(a). The Supreme Court has held § 3582(a) precludes a sentencing court

from imposing or lengthening a defendant’s term of imprisonment to promote his

rehabilitation. Tapia v. United States, 

, 2391 (2011).

       Johnson’s contention the court relied on the impermissible factor of

rehabilitation in deciding not to resentence him is unpersuasive. While the court

explicitly mentioned “rehabilitation” in its statement of reasons for declining to


       1
         “We review a district court’s decision whether to reduce a sentence pursuant to 18
U.S.C. § 3582(c)(2) for an abuse of discretion.” United States v. Vautier, 

, 759 n.3
(11th Cir. 1998).
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resentence him, the prohibition against sentencing based on rehabilitation extends

only insofar as a court may choose to lengthen a sentence for the purpose of

promoting a defendant’s rehabilitation. See 

court considered the lack

of potential rehabilitation as evidence that a sentence reduction was inappropriate

because of the need of the sentence to protect the public. The need to protect the

public is a permissible factor, both in sentencing and in deciding whether a

§ 3582(c)(2) reduction is appropriate. See 18 U.S.C. § 3553(a)(2)(C); U.S.S.G.

§ 1B1.10, comment. (n.1(b)(ii)).

      Johnson’s argument the court erred in failing to consider evidence of good

conduct after his initial sentencing is also without merit. Generally, when a person

is being resentenced, a court is entitled, but not required, to consider evidence of

the prisoner’s rehabilitation since the initial sentencing. See Pepper v. United

States, 

, 1241 (2011) (holding that, during a resentencing, a court

“may consider evidence of defendant’s rehabilitation since his prior sentencing”).

The Guidelines commentary governing § 3582(c)(2) reductions also states that,

when deciding whether and to what extent to reduce an eligible prisoner’s

sentence, the court “may” consider post-sentencing conduct. U.S.S.G. § 1B1.10,

comment. (n.1(B)(iii)). While the court could have (and may have) considered that

evidence, it was not required to do so. The court therefore did not abuse its




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discretion in failing to explicitly consider that evidence when deciding not to

reduce Johnson’s sentence.

       To the extent Johnson argues the court used the wrong version of the

Sentencing Guidelines, that argument also fails. Johnson’s argument in his initial

brief 2 is that, because the court considered an impermissible factor and failed to

consider relevant evidence, it must have used the wrong edition of the Guidelines.

However, as discussed above, the court committed no such error. Therefore,

Johnson has failed to demonstrate that the court abused its discretion in declining

to resentence him, and we affirm.

       AFFIRMED.




       2
          Johnson’s argument, raised for the first time in his reply brief, that the district court
miscalculated his Guidelines range is without merit. Based on 10.16 kilograms of crack cocaine,
pursuant to U.S.S.G. § 2D1.1(c)(1), Johnson’s present base offense level is 38, the highest base
offense level. His enhancements totaled four levels, so his total offense level is 42. With a
criminal history category of II, his Guidelines range is 360 months’ to life imprisonment, which
is the range the district court used.
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