United States v. Neal , 517 F. App'x 20 ( 2013 )

12-2576-cr
U.S. v. Neal
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 3rd day of April, two thousand thirteen.
4
5 PRESENT:
6 RAYMOND J. LOHIER, JR.,
7 SUSAN L. CARNEY,
8 Circuit Judges,
9 JED S. RAKOFF,
10 District Judge.*
11 _____________________________________
12
13 UNITED STATES OF AMERICA,
14
15 Appellee,
16
17 v. 12-2576-cr
18
19 ROY NEAL,
20
21 Defendant-Appellant.
22 _____________________________________
23
*
The Honorable Jed S. Rakoff, of the United States District Court for the Southern
District of New York, sitting by designation.
1 FOR APPELLANT: James F. Greenwald, Assistant Federal
2 Public Defender, and James P. Egan,
3 Research & Writing Attorney, for Lisa A.
4 Peebles, Federal Public Defender, Office
5 of the Federal Public Defender, Syracuse,
6 NY.
7
8 FOR APPELLEE: Elizabeth S. Riker and John M. Katko,
9 Assistant United States Attorneys, for
10 Richard S. Hartunian, United States
11 Attorney for the Northern District of New
12 York, Syracuse, NY.
13
14 Appeal from a judgment of the United States District Court for the Northern District
15 of New York (Glenn T. Suddaby, Judge).
16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
17 AND DECREED that the case is REMANDED.
18 Defendant-appellant Roy Neal appeals from the District Court’s judgment of
19 conviction entered June 25, 2012. On appeal, Neal argues that his sentence was
20 procedurally unreasonable because the District Court (1) based the length of his sentence
21 on his purported need for rehabilitation and (2) failed to calculate the new Sentencing
22 Guidelines (the “Guidelines”) range after deciding to upwardly depart from the 24-30
23 month applicable Guidelines range. Because Neal did not raise these arguments before
24 the District Court, we review for plain error. United States v. Cassesse, 685 F.3d 186, 188
25 (2d Cir. 2012). We assume the parties’ familiarity with the facts and record of the prior
26 proceedings, to which we refer only as necessary to explain our decision.
27
2
1 I. Length of the Sentence
2 In Tapia v. United States, 131 S. Ct. 2382 (2011), the Supreme Court held that 18
3 U.S.C. § 3582(a) “precludes sentencing courts from imposing or lengthening a prison term
4 to promote an offender’s rehabilitation.” Id. at 2391. A district court may properly
5 “discuss[] the opportunities for rehabilitation within prison or the benefits of specific
6 treatment or training programs” and make recommendations to the Bureau of Prisons
7 concerning rehabilitation. Id. at 2392; see United States v. Gilliard, 671 F.3d 255, 259 (2d
8 Cir. 2012). But a remand for resentencing may be appropriate where “the sentencing
9 transcript suggests the possibility that [the defendant’s] sentence was based on [his]
10 rehabilitative needs.” Tapia, 131 S. Ct. at 2392.
11 Here, the record indicates that the District Court imposed a 42-month sentence
12 based in part on Neal’s apparent need for rehabilitation. During the sentencing, the
13 District Court explicitly provided two reasons for its decision to depart upward from the
14 applicable Guidelines range: (1) “the consistency of [Neal’s criminal] behavior” and (2)
15 the need for “sufficient time for [Neal] to get through the[] [treatment] programs that [the
16 Court was] recommending.” Specifically, the District Court stated:
17 Upon your plea of guilty to Count One of the Information, it is the judgment
18 of the Court that you’ll be committed to the custody of the Bureau of Prisons
19 to be imprisoned for a term of 42 months. 42 months represents an upward
20 departure in the suggested guideline range. And the reason for this, for the
21 record, is the consistency of behavior despite multiple attempts to reach you
22 and to get you to stop this behavior. It also is the result of this Court feels
23 that you need some not so much punishment as it is treatment, and the Court
24 is going to recommend that you be sent to a facility as close as possible in
25 [Atlanta], Georgia, or in the [Atlanta], Georgia area, and that mental health
26 treatment, evaluation and treatment be a part of your sentence.
3
1
2 The other reason I’m upwardly departing is so that there can be sufficient
3 time for you to get through these programs that I’m recommending and also
4 to hopefully learn some sort of trade or occupation.
5
6 Because Neal’s rehabilitative needs clearly factored into his sentencing, we remand the
7 case and direct the District Court to vacate the sentence and proceed to resentencing
8 without considering those rehabilitative needs in determining the length of the sentence.
9 II. Calculation of Post-Departure Guidelines Range
10 Neal also contends that the District Court erred by not articulating the
11 post-departure Guidelines range. We need not determine whether the District Court’s
12 failure to specify the post-departure Guidelines range constituted plain error. On remand,
13 the District Court should state on the record the applicable criminal history category, and,
14 consistent with better practice, it should state the post-departure Guidelines range. See
15 United States v. Fernandez, 443 F.3d 19, 26 (2d Cir. 2006) (sentence satisfies the Sixth
16 Amendment if, among other things, the sentencing judge “calculates the relevant
17 Guidelines range, including any applicable departure under the Guidelines system”).
18 We have considered Neal’s remaining arguments and conclude that they are without
19 merit. For the foregoing reasons, we REMAND to the District Court with instructions to
20 vacate the sentence and resentence the defendant in conformity with Tapia and this Order.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
4