United States v. John C. Matthews, United States of America v. Roger Ray, United States of America v. Alonzo Warren , 480 F.2d 1191 ( 1973 )

PER CURIAM.

Each of the appellants in these appeals was convicted of (1) possession of unregistered firearms, (2) possession of prohibited weapons, and (3) carrying a dangerous weapon,¹ and was sentenced to a term of imprisonment. We affirm the convictions. The evidence was adequate to enable the jury to find that the possession of the weapons, which were in a car in which appellants were riding, could be knowledgedly attributed to them. In their briefs in this court, but not pressed in oral argument, it is contended that the search of the car which housed the weapons was unlawful under the Fourth Amendment, but we think the search in this case must be held to have been valid under Chambers v. Maroney, 399 ’U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

Though, as stated, we affirm the conviction of appellant Warren, we find merit in the question he raises about his sentence as an adult rather than under the Youth Corrections Act, 18 U.S.C. § 5006 et seq. (1970), the Act, for which he was eligible. His sentence as an adult was imposed prior to the en banc decision of this court in United States v. Coefield, 155 U.S.App.D.C. -, 476 F.2d 1152 (1973), and without the benefit of a report available under section 5010(e) of the Act.

We recognize that the learned trial judge considered the Youth Corrections Act before sentencing Warren but the reasons given for sentencing him as an adult seem not to comport with subsequent judicial developments. This, coupled with the lapse of a substantial time-period since sentencing, with the possible new light now available with respect to this appellant, constrains us to have the sentence reconsidered.

A sentence under the Act does not require the sentencing court to make an affirmative finding that the youth offender would benefit from such a sentence. Under section 5010(d) of the Act the eligible youth is entitled to the opportunity the Apt affords for rehabilitation unless there is an affirmative and explicit finding he would not benefit from treatment under subsections (b) or (c) of section 5010. The relevant data in this case shows that appellant is making progress in the adult facility at Lorton. Such progress in an adult facility, encouraging as it is, is significant evidence appellant would benefit if placed in one of the special facilities Congress has required to be provided for youth offenders, rather than a reason to retain him in confinement as an adult. Yet, when it was brought to the attention of the district judge, his only observation was that since appellant was making progress at the adult facility, there was no need to consider the youth facility. We are obliged to honor the decision of Congress that these special facilities are more advantageous for youth, absent a no benefit finding under the Coefield criteria. As to appellant’s previous record, though it lists a number of juvenile arrests, only two in 1964 resulted in a finding of culpability by the Juvenile Court; and it is significant that with respect to them he was placed on probation, and hence he did not have experience in a custodial setting, as would be the case if sentenced under the Youth Corrections Act.

It also appears that the Act was not utilized because of the court’s disaffection in some respects with the administration of the facilities at Lorton for those sentenced under the Act. This is very troubling to us as a basis for sentencing as an adult, for it runs counter to the congressional plan as particularly evidenced by section 5010(d) of the Act — the “no benefit” provision. Moreover, it does not take into consideration the availability to the Attorney General of youth correctional facilities elsewhere than at Lorton. We think the judge’s understandable concern is not a sound basis for sentencing as an adult, especially in light of the decision in United States v. Alsbrook, 336 F.Supp. 973, at 981-983 (D.D.C.1971),² and where, as here, there has been no reference of the matter under section 5010(e) as contemplated by Coefield, and, also, there is an absence of affirmative reasons stated by the court why “the special youth treatment afforded by the Act would be of no value.” United States v. Waters, 141 U.S.App.D.C. 289, at 291, 437 F.2d 722, at 724 (1970).

The judgments of convictions are affirmed. The sentence of appellant Warren is vacated and the matter of his sentence is remanded for further proceedings consistent with this opinion.

1 . (1) 26 U.S.C. § 5861(d) (1970); (2) 22 D.C.Code § 3214(a) (1967); (3) 22 D.C.Code § 3204 (1967).

2 . We need not consider what the legal situation might be if the District Court had entertained a proceeding, like that in Alsbrook, to consider its concerns over Youth Corrections Act treatment, had also considered the possibility of available facilities other than Lorton, which, under section 5013, might include private agencies, and subsequently found that the program would be of no benefit to the appellant.