United States v. Dennis T. McDonald , 481 F.2d 513 ( 1973 )

WILKEY, Circuit Judge:

On 13 November 1970 appellant was found guilty of robbery (22 D. C.Code § 2901), simple assault (22 D.C. Code § 502), and carrying a pistol without a license (22 D.C.Code § 3204). He was sentenced to 2-6 years for the robbery, 1 year for the assault, and 1 year for carrying the pistol, all sentences to run concurrently. . At the time of his conviction, McDonald was twenty-two years old. The only contention meriting discussion on this appeal is his claim that the District Court improperly sentenced him as an adult offender.¹

Appellant contends that he was eligible for youth corrections treatment pursuant to the Young Adult Offender statute.² He claims that the District Court erred in either (1) failing to articulate reasons for deciding in favor of an adult sentence or (2) acting on the presumption that, where only D.C.Code offenses were charged, the Young Adult Offender statute did not apply to give a youth corrections option.

The District Court’s reasons for imposing an adult sentence do not emerge clearly from the transcript. At times, the judge expressed a desire to insure that the defendant serve a minimum sentence in confinement.³ In other instances, the judge expressed his feeling that the defendant would benefit from sentencing under the Youth Corrections Act, which is inconsistent with a minimum period of incarceration. There is some indication that the judge felt that defendant was ineligible for youth corrections treatment as a matter of law. Since the decision to sentence McDonald as an adult was proper regardless of which description of the District Court’s actions and motives is accepted, the judgment must be affirmed.

If the judge thought he had an option to sentence McDonald under the Young Adult Offenders statute, the fact remains that he declined to do so. His failure to make specific findings or to articulate his reasons for this decision was not in error. Under the broad discretion granted by the Young Adult Offender statute, a court which found that an offender would benefit from Youth Corrections Act treatment would still not be required so to sentence him. Furthermore, no finding on potential benefit is required, because “an offender older than 22 years but less than 26 years is, as a general proposition, to be treated as an adult.” United States v. Waters.⁴

If, on the other hand, the District Court concluded that the Young Adult Offenders statute did not apply because only D.C.Code violations were involved, this conclusion must be upheld as correct. Section 6 of Public Law 85-752 provides:

Sections 3 and 4 of this' Act [the Young Adult Offenders statute] shall apply in the States of the United States, and in the District of Columbia so far as they relate to persons charged with or convicted of offenses under any law of the United States not applicable exclusively to the District of Columbia. [Emphasis added.]

Since the Young Adult Offenders statute applies solely to persons convicted of national crimes, and the defendant was charged with and convicted of purely D. C.Code offenses, this case comes squarely within that limiting statutory language.⁵

Appellant and amicus curiae claim that Section 6 unconstitutionally discriminates against those found to have violated local D.C. law. This argument essentially rests on one of two propositions: (1) the Young Adult Offenders statute improperly selects out District of Columbia offenders for separate treatment; or (2) there is no justifiable reason for Congress not to extend the special benefit of the national statute to local offenders. Neither contention is supported by logic or precedent.⁶

As to the first claim, amicus places strong reliance on dicta in United States v. Thompson.⁷ That case did involve the important question of the “extent to which Congress can treat residents of the District of Columbia differently from residents of the 50 states . . . .”⁸ The court there held that the more lenient federal Bail Reform Act covered a defendant charged under national federal criminal statutes and that the more stringent bail provision of the District of Columbia Court Reform Act had to be construed as applying only to local D.C. offenses.

We would agree with appellant that excluding the District of Columbia from the nationally applicable provisions of the Young Adult Offenders statute might be suspect. But appellant’s argument is completely confused: this has not been done; to the contrary, appellant is being treated exactly as he would be if he were a citizen of one of the 50 states. Appellant here is not a local resident convicted of a national offense claiming a right to uniform application of the statute. Rather, caught in a situation precisely the opposite of that in Thompson, McDonald is complaining that he has not been separated out for special treatment “based only on the situs of the crime.” ⁹

Appellant overlooks the fact that the special mention of the District of Columbia in the Young Adult Offenders statute was required solely by the “anomaly” that certain “laws of the United States” are not national in character. The “special” provision relating to “any law of the United States” “applicable exclusively to the District of Columbia” does not create special treatment for D.C.Code offenders —it merely operates to place the District of Columbia in the same status as the other states. Under the clear words of the statute, .citizens of the District are in the same situation as all others: a person convicted of violating a local law cannot claim the benefit of the Young Adult Offenders statutes, while a person convicted of violating a federal law in any jurisdiction can claim its coverage.

As the Thompson court noted, the passage of a national law “implies a threshold decision to override regional differences in favor of a uniform standard that will govern the entire country.”¹⁰ Appellant’s argument appears to rest on the proposition that the courts must insist on uniform application of national laws when this operates to provide more lenient treatment for offenders in D. C. —but that a statutory provision which mentions D. C. in order to bring it into conformity with the 50 states is invalidly discriminatory if the resulting uniformity operates to treat local offenders more harshly than would a desired special exception¹¹ We find neither logic nor sound policy in that suggestion.

The second prong of appellant’s constitutional argument concerns the statutory scheme’s effect of distinguishing between two groups of offenders. Those persons under 22 years of age violating local D. C. law have a chance of receiving federal Youth Corrections Act treatment; while those between their 22nd and 26th birthdays, violating local law, do not. As amicus points out, Congress extended the Youth Corrections Act to local D.C.Code offenders. His accompanying argument is that a similar extension is required in the case of the Young Adult Offenders statute. That just does not follow.

Refusal to extend the Young Adult Offenders statute is a rational discrimination based on an age group, not one against D. C. offenders.¹² So the Thompson court’s requirements regarding special treatment of the District of Columbia — “the strictest possible review” and a “convincing” justification — do not apply. Further, the fact that Congress can enact special local legislation dealing with the District of Columbia does not mean that it must always do so.

The Young Adult Offenders statute is a cautious extension of the Youth Corrections Act.¹³ It is the sort of reform which Congress is allowed to take “one step at a time.” ¹⁴ Congress has chosen a rational limit to the first step —applying the reform to national crimes and stopping short of applying it to the full range of common law street crimes, which are prosecuted by the Federal Government only in the District of Columbia.

There was nothing particularly novel about Congress’ choice to give special “youth” treatment to offenders between the ages of 18 and 21, and then later to extend it to the District of Columbia. Although there was practically no discussion of this point,¹⁵ extension of Youth Corrections Act treatment to local D. C. offenders in that age bracket was not at variance with the practice in some states. In contrast, special youth treatment for those between the ages of 22 and 26 was indeed quite novel. We think it was an eminently valid approach to treat the District of Columbia like any other state in this context by refusing to extend the experiment to common law street crimes of the type covered by state law or the D.C.Code.¹⁶

In short, to hold Congress’ action here unconstitutional would be tantamount to saying that Congress could not pass national legislation dealing only with the problems of national crimes without making that legislation applicable to local offenses committed in the District of Columbia. The statute challenged here is definitely not an experiment “with the rights of the voiceless residents of the District.” ¹⁷ Rather, it constitutes a legislative judgment not to extend an experiment which concerns only those who commit federal offenses. Congress was as free to draw that line as it was to deny the benefit of the experiment to those offenders who had passed their 26th birthday. Acceptance of the contrary theory would nullify every enactment dealing with purely local D.C. offenses which is at variance with its national federal counterpart. We decline the invitation to so hold; accordingly, the judgment of the District Court is Affirmed.

1 . Appellant also claims that the trial court abused its discretion by allowing the Government to impeach his testimony with a 1967 conviction for housebreaking. See Luck v. United States, 121 U.S.App.D.C. 151, 348 F.2d 763 (1965). Since this ruling followed argument by counsel, the court did give on-the-record consideration to McDonald’s attempt to show sufficient reason for withholding the past conviction from the jury. The court’s decision, implicitly finding that no sufficient showing was made, is buttressed by the fact that the case “had narrowed to the credibility of . the accused and his accuser— and in those circumstances there was greater, not less, compelling reason for exploring all avenues which would shed light on which of the two witnesses was to be believed.” Gordon v. United States, 127 U.S.App.D.C. 343, 348, 383 F.2d 936, 941 (1967).

In addition, appellant claims that there was insufficient evidence to support the conviction for carrying a pistol without a license. He argues that 22 D.C. Code § 3204 requires that the weapon be found “on or about his person”; whereas the searching officer found the pistol on the floorboard and between and behind the front bucket seats of the car in which appellant and his companion were riding— where “you couldn’t just reach around and get it.” Transcript, at p. 137. This court has construed “about” to mean “in such proximity to the person to be convenient of access and within reach.” See Brown v. United States, 58 U.S.App.D.C. 311, 312, 30 F.2d 474, 475 (1929). The placement of this pistol made it even more accessible than the one under a hinged front seat, which could only be removed after leaving the car, in Wilson v. United States, 91 U.S.App.D.C. 135, 198 F.2d 299 (1952). As in Wilson, we find that the evidence was clearly sufficient to justify submitting the issue to the jury. See Crawford v. United States, 126 U.S.App. D.C. 156, 375 F.2d 332 (1967).

2 . 18 U.S.C. § 4209 provides, in part:

In the case of a defendant who has attained his twenty-second birthday, but who has not attained his twenty-sixth birthday at the time of his conviction,

if . the court finds that there is [sic] reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act . . . sentence may he imposed pursuant to the provisions of such act.

3 . At sentencing, the Court said: “ [a] t 22, and the robbery, I want a minimum.” See Sentencing Transcript at pp. 6-7.

4 . 141 U.S.App.D.C. 289, 437 F.2d 722, 723 (1970). The legislative history of the Young Adult Offenders statute makes it clear that youth corrections treatment is to be afforded to those between their 22nd and 26th birthdays only “in exceptional cases” and only “when the court makes a special finding.” 437 F.2d 722, 723-724, n. 7. The analysis in the Waters case was confirmed by this court en T>ano in the recent 'cases of United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (decided 6 February 1973), United States v. Reed, 155 U.S.App.D.C. 198, 476 F.2d 1145 (decided 9 March 1973), and United States v. Hoston, 155 U.S.App. D.C. 198, 476 F.2d 1145 (decided 9 March 1973).

5 . Another limiting provision, Section 7 of Public Law 85-752, provides that the Young Adult Offenders statute does not apply to any offense for which there is a mandatory penalty. Given our conclusions concerning Section 6, we need not consider whether the District of Columbia robbery statute fits within this definition.

6 . At the outset, we reject the dissent’s suggestion that we are in some way immunizing section 6 from constitutional scrutiny ; rather, we scrutinize and find no flaw.

7 . 147 U.S.App.D.C. 1, 452 F.2d 1388 (1971), cert. denied, 405 U.S. 998, 92 S. Ct. 1251, 31 L.Ed.2d 467 (1972).

8 . 452 F.2d at p. 1335.

9 . 452 F.2d at p. 1337.

10 . 452 F.2d at p. 1339.

11 . Our dissenting colleague speaks repeatedly of the ways in which Congressional refusal to extend the Young Adult Offenders statute’s coverage to local offenders harms or “disadvantages” the residents of D.C. It should be noted that if there is “disadvantage” to anyone it is to those who violate the D.C. Code and who are thereby accountable to the District of Columbia for their acts — not any disadvantage to D.C. residents per se. District residents have just as great an interest in seeing that less-than-youthful perpetrators of crimes of violence, characteristically covered by local law, are removed from society for a definite term of years as do the citizens of the 50 states, in which the Young Adult Offenders statute only extends to federal crimes, precisely as in D.C. See footnote 15, infra.

12 . Even if, as we do not by any means concede, this refusal is a distinction based solely on the difference between a violation of the D.C.Code and federal law, a distinction based on precisely that criterion was approved in Thompson itself.

13 . Congressman Celler, on whose characterization of the Act amicus relies, prefaced his remarks in the floor debates on the Act by noting:

There is no general extension of the Youth Correction Act by this proposed legislation. 104 Cong. Rec. 13393 (1958).

14 . See McDonald v. Board of Education, 394 U.S. 802, 809, 89 S.Ct. 1404, 22 L. Ed.2d 739 (1969).

15 . When considering this expansion, the Congress focused entirely on the elimination of budgetary and procedural problems which had previously been thought to make the Act’s application to the District problematical. See H.R. Rep. No. 1629, 82nd Cong., 2d Sess. as cited in 1952 U.S. Code Cong. & Admin. News, pp. 1379 et seq.

Congress failed to consider the potential impact on the policy of the Act of the differing sorts of offenses covered by the U.S. and D.C. Codes. The federal offenses habitually engaged in by youthful offenders, and for which youth corrections treatment was considered most desirable, were Dyer Act violations, i. e., the theft of automobiles. When the Youth Corrections Act was originally considered, Mr. James Y. Bennett, Director of the United States Bureau of Prisons, testified that “far and .away the largest number of young offenders who would come to us under the bill are automobile theft cases.” Hearings on S. 2609 Before a Subcomm. of the Senate Comm, on the Judiciary, 81st Cong., 1st Sess., 29 (1949). In contrast, many of the crimes committed by young people in violation of a “law of the United States applicable exclusively to the District of Columbia” involve much more serious, violent or vicious conduct. See 119 Cong. Rec. 4553 et seq. (Daily ed. 14 Mar. 1973) (remarks of Senator Beall).

This extension of the Youth Corrections Act to local street crimes of violence potentially creates the precise effect which the Act was designed to avoid. Young perpetrators of the sort of violent street crimes which do not fall within the federal jurisdiction in the fifty states are made eligible for confinement along with those whose “federal offense” consisted of a “joy ride”- — making youth corrections facilities more crowded and rendering rehabilitation all that much more difficult. Were Congress to focus on that fact, second thoughts about the expansion of the Youth Corrections Act to D.C. Code offenses would inevitably arise.

16 . Appellant protests that some local offenses have very similar federal counterparts. That argument was considered of no moment in Thompson, despite the fact that one charged with robbery under D.C. law could incur harsher bail treatment than one charged with federal bank robbery.

17 . United States v. Thompson, 147 U.S.App.D.C. 1, 452 F.2d 1333, 1341 (1971) .