United States v. Jacinto Negron

OAKES, Circuit Judge

(dissenting):

I dissent. I would reverse and remand for the limited purpose of making the requisite appraisal whether Young Adult Offender (YAO) treatment should be given.

I recognize that under Dorszynski v. United States, 418 U.S. 424, 433 n.9, 94 S.Ct. 3042 (1974), and our express statement in United States v. Kaylor, 491 F.2d 1133, 1137 (2d Cir.) (en banc), vacated for reconsideration on other grounds, 418 U.S. 909, 94 S.Ct. 3201, 41 L.Ed.2d 1155 (1974), this treatment can be given only if the court makes affirmative findings that a defendant would benefit therefrom. Thus if Judge Costantino had said nothing, having been aware of appellant’s eligibility for YAO treatment, there would be no remedy.

But Judge Costantino did say something: “In view of [Negron’s] involvement in the matter before the Court and the particular part that he took in that involvement, the court denies him [YAO] treatment.” This in my view is just as improper a basis for denying YAO treatment as if the judge had said: “In view of the type of felony involved the court denies him treatment.” As we said in Kaylor, “the mix is ultimately to be based upon an examination of the individual’s case,” rather than a “fixed sentencing policy based on the category of crime” or other improper factor. 491 F.2d at 1140. Judge Costantino here explicitly and erroneously relied upon the nature of the crime and appellant’s involvement in it; he did not make a “careful appraisal of the variable components relevant to the sentence upon an individual basis.” United States v. Schwarz, 500 F.2d 1350, 1352 (2d Cir. 1974) (per curiam). As in Schwarz, which also involved a Young Adult Offender, the court’s statements here were “inappropriate” because they indicated the judge’s belief that the nature of the crime and the degree of appellant’s participation in it were sufficient grounds to deny YAO treatment. This case is in a sense stronger for reversal than Schwarz, because there the court was at least taking into account the young woman’s background and intelligence, however erroneously holding them against her.

The majority opinion goes on to say that Judge Costantino “read and considered” the presentence report, but the record shows only that the report had been given to him, not that he either read or considered it. Transcript of October 24, 1975, at 7 (“The Court has a probation report at this time.”). Moreover, the majority significantly omits to say that the judge considered whether Negron would benefit from YAO treatment. The only implication one can derive from the judge’s above-quoted remarks is that he did not consider whether there would be any benefit. Mere possession of a presentence report surely does not amount to consideration when, as here, the judge’s statement on the record demonstrates he did not reach the crucial question: whether Negron would benefit from YAO treatment. The majority opinion in my view is thus wholly inconsistent with Schwarz.