Algie J. Walls v. United States

544 F.2d 236

Algie J. WALLS, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 75-4038
Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Dec. 20, 1976.

Algie J. Walls, pro se.

Ronald L. Knight, U. S. Atty., John D. Carey, Asst. U. S. Atty., Macon, Ga., for respondent-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before COLEMAN, GOLDBERG and GEE, Circuit Judges.

PER CURIAM:

1

Defendant Algie J. Walls appeals from the denial by the district court of his motion to vacate sentence pursuant to 28 U.S.C. § 2255 (1970), arguing that his sentencing court's failure to make affirmative findings of fact that he would not benefit from treatment under the Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970),1 invalidated his sentence.

2

Appellant pled guilty to a violation of 18 U.S.C. § 2113(d) (1970) (bank robbery coupled with assault with a dangerous weapon) and received a twenty-year sentence. He was under 21 years old at the time and subject to the special sentencing provisions of the Youth Corrections Act. The trial court explicitly stated, "The defendant is a Youth Offender and will not derive benefit from treatment under subsection (b) or (c) or section 5010, Title 18, U.S.C.A. . . ." Defendant argues that because the trial court did not include supporting reasons for his finding of "no benefit," we should vacate his sentence and remand for resentencing by the district court. We decline to do so on the authority of Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). Dorszynski held that before sentencing a youth offender as an adult the sentencing judge must make a finding that there would be no benefit to sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970). 418 U.S. at 444, 94 S.Ct. 3042. In so doing, the Court rejected a requirement that trial judges state reasons supporting their "no benefit" finding, holding that requirement too intrusive upon the trial court's sentencing discretion. Although the defendant was sentenced eight months prior to Dorszynski, this circuit applied Dorszynski retroactively in Hoyt v. United States, 502 F.2d 562 (5th Cir. 1974).2 Accordingly, the trial judge's explicit finding that the defendant would not benefit from sentencing under the Youth Corrections Act clearly complies with Dorszynski. He did not err in not providing supporting reasons for his decision.

3

AFFIRMED.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir. 1970, 431 F.2d 409, Part I

1

Under the Youth Corrections Act, a federal trial judge may provide a youthful offender with rehabilitative treatment rather than retributive punishment. See United States v. Dover, 489 F.2d 688, 689 (5th Cir. 1974)

2

In United States v. James, 528 F.2d 999, 1023 (5th Cir. 1976), we suggested that Hoyt did not decide the question of retroactivity of Dorszynski. In Robinson v. United States, 536 F.2d 1109 ((5th Cir., Aug. 13, 1976)), we stated, and reaffirm today, that Hoyt applied Dorszynski retroactively. 536 F.2d at 1110