     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




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