Carl Robinson v. United States

536 F.2d 1109

Carl ROBINSON, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 76-1448

Summary Calendar.*

United States Court of Appeals,
Fifth Circuit.

Aug. 13, 1976.

Carl Robinson, pro se.

Robert E. Hauberg, U.S. Atty., Daniel E. Lynn, E. Donald Strange, Asst. U.S. Attys., Jackson, Miss., for respondent-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, GEE and TJOFLAT, Circuit Judges.

PER CURIAM:

1

This appeal from the denial of appellant's habeas petition presents a question of compliance with the requirement of Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974), that before sentencing a young offender as an adult the sentencing judge must make an explicit finding that there would be no benefit to sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. Dorszynski was applied retroactively in this circuit in Hoyt v. United States, 502 F.2d 562 (5th Cir. 1974), and so governs the sentencing of this appellant.

2

Appellant's motion for reduction of sentence, Fed.R.Crim.P. 35, was denied in November 1974. He then brought a motion to vacate his sentence under 28 U.S.C. § 2255, asserting once again that because Dorszynski was not complied with by the sentencing judge his sentence must be vacated.

3

In the circumstances of this case, we determine to follow the course suggested by the dissent in Sappington v. U. S., 518 F.2d 28 (8th Cir. 1975), which concluded that a finding of no benefit at the time of denial of the habeas petition was sufficient compliance with Dorszynski. Once the sentencing judge has "reconsidered" the alternative sentencing in connection with a § 2255 petition and has rejected the possibility of benefits under the F.Y.C.A., it is a futile gesture on appeal from denial of habeas to vacate the sentence and return to the same judge to make the same determination. Dorszynski does not stipulate when the explicit finding of no benefit must be made:

4

"Once it is made clear that the sentencing judge has considered the option of treatment under the Act and rejected it, however, no appellate review is warranted." 418 U.S. at 443, 94 S.Ct. at 3053.

5

Here when the sentencing judge, also the judge reviewing the § 2255 petition, has clearly considered the option of F.Y.C.A. sentencing indeed has done so not once but twice we deem an affirmance to be within the spirit of Dorszynski and a remand an empty formality.

6

AFFIRMED.

*

Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Cas. Co., 5 Cir. 1970, 431 F.2d 409. Part I