11-4954-cr
United States v. Counterman

                                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 A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


       At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York the 4th
day of February, two thousand thirteen.

Present:    ROSEMARY S. POOLER,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges.
_____________________________________________________

UNITED STATES OF AMERICA,

                                           Appellee,

                              -v-                                              11-4954-cr

BILLY COUNTERMAN,

                              Defendant-Appellant.
_____________________________________________________

Appearing for Appellant:            Randolph Z. Volkell, Merrick, NY

Appearing for Appellee:             Paula Ryan Cohen, Assistant United States Attorney, Northern
                                    District of New York (Richard S. Hartunian, United States
                                    Attorney; Edward R. Broton, Assistant United States Attorney, on
                                    the brief)

      Appeal from the United States District Court for the Northern District of New York
(Suddaby, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is REMANDED.

        Billy Counterman appeals from his sentence, imposed by the United States District Court
for the Northern District of New York (Suddaby, J.) following his plea of guilty to one count of
transmitting a threatening communication in interstate commerce in violation of 18 U.S.C. §
875(c), sentencing him principally to 32 months imprisonment. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

       In Tapia v. United States the Supreme Court held that “the Sentencing Reform Act
precludes federal courts from imposing or lengthening a prison term in order to promote a
criminal defendant’s rehabilitation.” 131 S. Ct. 2385 (2011). The Supreme Court explained that
“when sentencing an offender to prison, the court shall consider all the purposes of punishment
except rehabilitation—because imprisonment is not an appropriate means of pursuing that goal.”
Tapia, 131 S.Ct. at 2389.

        Here, it appears the district court may have based its sentence, in part, on its assessment
of the length of time necessary for Counterman to complete a treatment program. The district
court sentenced Counterman to thirty-two months’ imprisonment based on “the psychological
injury suffered by multiple victims as well as the lengthy time period involved.” After
sentencing Counterman, the district court expressed its hope that the time in prison “will give
sufficient time for a treatment program that will have a lasting impact;” and also stated the
upward departure was “not to be punitive, not so much for punishment, it’s my hope and its my
request that the Federal Bureau of Prisons put you in a facility that has the best psychiatric,
psychological program for you possible, to get you the help so that this behavior does not
continue.” We cannot independently determine from the record before us the degree, if any, by
which the length of the sentence was based on the district court’s desire to have Counterman
complete a treatment program.

         We therefore remand in accordance with the procedures of United States v. Jacobson, 15
F.3d 19, 22 (2d Cir. 1994), for resentencing. On remand, the district court shall clarify whether
it considered rehabilitative purposes in sentencing Counterman to thirty-two months’
imprisonment. If rehabilitative purposes factored into its sentencing decision, the district court is
directed to vacate the sentence, arrange for defendant’s appearance, and proceed to resentencing.
If the district court did not consider rehabilitative purposes in sentencing Counterman, it shall
clarify its sentencing decision on the record, and the mandate shall issue forthwith.

       Accordingly, we REMAND the case for further proceedings consistent with this order.


                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




                                                 2
