United States v. John Patrick Marron

JAMES M. CARTER, Circuit Judge:

The appeal raises the questions (1) whether a district court may legally sentence a 20-year-old youth offender to a split sentence of time and probation to follow, under 18 U.S.C. §§ 3651 and 5010(b); and (2) if not, whether the district court may revoke the probation and sentence to custody. We hold the probation sentence was illegal, but the district court could revoke probation and legally sentence the defendant under § 5010(b). We affirm.

Defendant pled guilty to a charge of making and forging an endorsement of a check payable solely from funds of the United States, in violation of 18 U.S.C. § 495. The court, on April 2, 1976, found the defendant was 20 years of age and was “suitable for handling under the Federal Youth Corrections Act (Y.C.A.), 18 U.S.C. §§ 5005-24, as a young adult offender.”¹ The court then sentenced the defendant to the custody of the Attorney General “for imprisonment for a term of three (3) years; and pursuant to 18 U.S.C. § 3651, on condition that the defendant be confined in . a jail-type institution for a period of thirty days,” consisting of 48-hour weekends, “the execution of the remainder of the sentence of imprisonment is hereby suspended and the defendant thereafter is to be released and placed on probation for the balance of the term of sentence, upon the following terms and conditions: (1) that he obey all federal, state and local law . . . .”

On February 16, 1977, an order was filed directing that a warrant issue for violation of the terms of probation on the ground that defendant had been found guilty in the Police Court of Billings, Montana, on February 3, 1977, of driving a vehicle while intoxicated (D.W.I.). The Police Court record showed that defendant had asked for an attorney to be appointed for him, but the court advised him that the penalty was a fine and no jail term and that accordingly the court would not appoint an attorney.

The district court found the defendant had violated the terms of his probation and on March 3, 1977, revoked probation, found the defendant suitable for handling under the Y.C.A., and that there were reasonable grounds to believe that the defendant could benefit from treatment under the Y.C.A. The court then adjudged:

“that the defendant is hereby committed to the custody of the Attorney General . for treatment and supervision pursuant to 18 U.S.C. § 5010(b) until discharged ... as provided in 18 U.S.C. § 5017.”

On the appeal the defendant claims (1) the revocation was improper since he was entitled to counsel at the hearing; (2) that the first sentence imposed on April 2, 1976, was illegal and therefore the revocation and resentencing was improper, and (3) that on remand the court be required to ignore the Police Court conviction and sentence defendant to probation under the Y.C.A.

The government agrees that the case must be returned to the district court for resentencing since the defendant “can only be required to serve the sentence originally imposed or a lesser sentence (18 U.S.C. § 3653),” relying on the following language in that section:

“. . . the court may revoke the probation and require him to serve the sentence imposed, or any lesser sentence. . . ."

Both parties have first set forth in their briefs their views on whether lack of counsel in the Police Court voided that misdemeanor conviction. Then they discuss the revocation. Both agree there must be a remand for resentencing.

The parties have approached the problem backwards. We think the first sentence was illegal, but the resentencing was proper. Because the resentencing is independently valid, we do not reach the problem of the validity of the Police Court conviction.

The First Sentence Was Illegal

In the first sentencing on April 2, 1976, after finding the defendant was 20 years of age and suitable for handling under the Y.C.A. as a young adult offender,² the court applied the split sentence provision of 18 U.S.C. § 3651 (i. e., imposed an adult sentence of three years), suspended its execution, and placed defendant on probation on condition he serve thirty days in a jail-type institution. This is a typical sentence for an adult, but is not proper under Y.C.A, for a youth offender.

This circuit has several opinions on sentencing under the Y.C.A. In Cherry v. United States, 299 F.2d 325, 326 (9 Cir. 1962), we stated that 18 U.S.C. § 5010

“. . . gives a judge three choices at the time for sentencing a youth offender. He may place the latter on probation (§ 5010(a)), sentence him to the custody of the Attorney General for treatment and supervision, (§§ 5010(b), (c)), or sentence him as an adult (§ 5010(d)).”

In United States v. Hayes, 474 F.2d 965, 967 (9 Cir. 1973) we quoted the above statement in Cherry and added:

“There is certainly nothing to indicate that the judge may select any combination thereof. The Federal Youth Corrections Act is an alternative sentencing provision. At the discretion of the judge a youth offender deemed treatable under the Act can be sentenced to treatment rather than punishment under the applicable penalty provision provided by law. A combination of rehabilitative treatment and retributive punishment is not intended and is improper. See United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722, 726 (1970).

“We conclude that a judge electing to commit a youth offender for treatment and supervision under the alternative sentencing provisions of the Federal Youth Corrections Act is foreclosed from imposing an additional punitive penalty under another provision.

“The convictions are affirmed but the fines imposed are vacated.”

Hayes held that a sentence for treatment and supervision under 18 U.S.C. § 5010(b) could not also impose a fine. Accord, Cramer v. Wise, 501 F.2d 959 (5 Cir. 1974). A probationary sentence under the Y.C.A., 18 U.S.C. § 5010(a), may not condition probation upon payment of a fine and restitution of embezzled money. United States v. Bowens, 514 F.2d 440 (9 Cir. 1975). But in United States v. Hix, 545 F.2d 1247 (9 Cir. 1976), the court upheld a 5010(a) sentence coupled with a probationary condition of restitution. The court distinguished Bow-ens, stating the fine made the sentence illegal in that case.

Restitution was held proper under a Y.C.A. probationary sentence in United States v. Buechler, 557 F.2d 1002 (3 Cir. 1977), and Durst v. United States, 549 F.2d 799 (4 Cir. 1976). Certiorari in Durst was granted by the Supreme Court, 430 U.S. 929, 97 S.Ct. 1547, 51 L.Ed.2d 772. A decision late in 1977 or in 1978 may give considerable help on the problem.

A fine coupled with a probationary sentence under 5010(a) was held proper in United States v. Prianos, 403 F.Supp. 766 (N.D.Ill.1975). In United States v. Oliver, 546 F.2d 1096 (4 Cir. 1976) the sentence was imposed under 18 U.S.C. § 5010(b), the execution of the sentence was suspended, defendant was placed on probation under 18 U.S.C. § 5010(a) and was fined $1,500.00. The sentence was upheld on appeal.

In the case of a young adult offender (18 U.S.C. § 4209), sentenced to treatment and supervision under 18 U.S.C. § 5010(b), a special parole term under 21 U.S.C. § 841 may not be added to the sentence. United States v. Coleman, 414 F.Supp. 961 (D.Md. 1976). However, after a defendant was sentenced as an adult and then probation was revoked, on resentencing he could be lawfully sentenced under 18 U.S.C. § 5010(b), Cherry v. United States, supra; Young Hee Choy v. United States, 322 F.2d 64 (9 Cir. 1963); United States v. Bailey, 343 F.Supp. 76 (W.D.Mo.1971).

United States v. Mollet, 510 F.2d 625, 626 (9 Cir. 1975), appears to control our case. One defendant, Yamron,³ “was fined $5,000, and committed for supervision under 18 U.S.C. § 5010(b) and sentenced to 6 months, plus 5 years probation,” a typical split sentence. The court cited United States v. Hayes, supra, as controlling, holding that the Y.C.A. “forecloses the imposition of retributive punishment under other provisions of the Act, including the imposition of a fine (and, we would assume, imprisonment).” Yamron’s conviction was affirmed but the sentence was vacated and the case remanded for resentencing.⁴

We hold that the first sentence imposed was illegal. The court found the defendant was a youth offender and suitable for handling under the Y.C.A. Obviously the court thought it was proceeding under the Act. It then imposed a split sentence — a term for three years suspended and probation granted on condition that defendant serve 30 days in a jail-type institution. This amounted to imposition of retributive punishment, which is not permitted under the Y.C.A.

The Revocation of Probation and the Resentence

A hearing was held before the district court. The defendant was represented by counsel. There was received in evidence the conviction of D.W.I. in the Police Court. But the hearing did not stop at that. The defendant was called as a witness by his own attorney. When asked how much he had to drink he replied, “I had two beers at a friend’s house and then I went to the Cockpit. It’s a beer joint in Billings and I had about a glass and a half of beer but I was taking medication at the time . Darvon compound 65 under the doctor’s prescription.” He also testified, “. When I got picked up for D.W.I. I was supposed to take one of those capsules every four hours, but I had taken two because of my head. That is why I drank beer too, because my head was feeling bad from that . so I took two in four hours then I drank some beer.” He also admitted associating with Gary Kimball, an ex-convict; that Vance, his probation officer, warned him to stay away from Kimball, but he was riding in Kimball’s truck once after that. Kimball was arrested for D.W.I. at the same time the defendant was arrested. The defendant was also at a store at an earlier date when Kimball was arrested for shoplifting, and he and Kimball were together when they were arrested by U.S. marshals.

The court submitted the matter and on March 3, 1977, stated: “It is the judgment of the court that the facts set forth in the petition are true, that there was a violation of the probation order in this case, and that probation should be revoked.” (Emphasis added)

“Probation may be revoked when the judge is reasonably satisfied that a state or federal law has been violated, and conviction is not a prerequisite.” United States v. Carrion, 457 F.2d 808 at 809 (9 Cir. 1972). Thus even if the conviction in the Police Court of Billings is invalid, it is obvious from the transcript of the revocations hearings that there were sufficient facts offered and that the finding of violation of probation could be based on those facts without consideration of the Police Court conviction.

Although an interesting question is raised under Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972) because of the fact that the conviction (which carried a fine only) might have been or actually was used for the revocation of the defendant’s probation in the federal court, we do not reach the issue.

After revoking probation, the district court then found the defendant suitable for treatment as a youth offender and sentenced him under 18 U.S.C. § 5010(b) to the custody of the Attorney General. Although the original sentence with the grant of probation was invalid, the district court had the right to act and to resentence the defendant under the holding of Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). There a defendant had been placed on probation after he had left the courtroom. Upon violation of the terms of the probation he was sentenced to two years in prison. United States v. Kenyon, 519 F.2d 1229 at 1232 (9 Cir. 1975) summarized the Pollard holding as follows. Although “the initial probation [was] invalid, such an invalid probation could still be ‘revoked’ and replaced with a custodial term.” Under these authorities there was no need to remand the case for resentencing. The judgment of resentencing is affirmed.⁵

1 , 18 U.S.C. § 5006 defines a person under the age of twenty-two at the time of conviction as a “Youth offender.” A young adult offender, the term used by the court, was defined in 18 U.S.C. § 4209 as “a defendant who has attained his twenty-second birthday but has not attained his twenty-sixth birthday at the time of conviction . . . .”

Section 4209 became effective August 25, 1958, but was repealed on March 15, 1976, Public Law 94-233, ¶ 2, 90 Stat. 225. The repeal was effective on the sixtieth day following March 15, 1976 (see ¶ 16(b) of P.L. 94-233). The old section was in effect on April 2, 1976, the date of the first sentencing herein.

The same law in ¶ 2 enacted 18 U.S.C. § 4216 in language substantially similar to old § 4209.

2 . The use of the words “young adult offender” was obviously merely a mistake and would not affect the validity of the sentence if otherwise good. To be a young adult offender under 18 U.S.C. § 4209 (now § 4216), the defendant would have to be over 22 and under 26 years of age at the time of the commission of the offense.

3 . Mollet and Moxley, the other two defendants in the Mollet case, were fined and imposition of sentence of imprisonment suspended under § 5010(a), with five years probation. The court also affirmed their convictions and vacated each sentence and remanded each for resentencing. We do not think it affects the holding of the case, but in Hayes, the case relied on, each defendant had been sentenced for treatment and supervision under 18 U.S.C. § 5010(b) and each had been fined. The circuit affirmed the convictions but the fines were vacated. It would seem that only the fine as to Mollet and Moxley needed to be vacated.

4 . A contrary result was reached in United States v. Borawski, 297 F.Supp. 198 (E.D.N.Y.1969). There the defendant was sentenced to three years imprisonment and, pursuant to 18 U.S.C. § 3651 and § 5010(a) (of the Y.C.A.), was ordered to serve six months, and the remainder of the sentence was suspended and he was placed on probation. The district court, on a motion to correct an alleged illegal sentence, upheld it.

5 . The Federal Youth Corrections Act (Y.C.A.) became effective on September 30, 1950. The writer had been appointed to the district court in the fall of 1949 and, after the passage of the Y.C.A., used the statutes for 17 years, until he was appointed to the circuit in 1967.

He was always of the opinion that the statutory scheme in the Y.C.A., 18 U.S.C. § 5005, et seq., was a scheme unto itself and was operative without resort to the various other sections involving sentencing of adults. There is much to be said that district judges should be given great flexibility in sentencing tools and procedures, and some of the cases cited in this opinion where fines or restitution have been upheld under Y.C.A. sentencing speak of this need. However, the Y.C.A. in itself is immensely flexible in its statutory scheme, and it is difficult to imagine situations where a result desired by a judge cannot be achieved under the Y.C.A. provisions.

It is true that fine and restitution are two of the situations which are not provided for in the Act. In this circuit, as shown above, restitution provisions have been held proper, but not so as to fines.

Often the court decides it needs a study to be made of the defendant before finally sentencing him, and accordingly sentences the defendant for a 60-day study under 18 U.S.C. § 5010(e). After the study the court has all its original options available.

As between the alternatives of mixing together the Y.C.A. procedures and the adult procedures for sentencing on the one hand, and confining the sentencing of youth offenders and young adult offenders to the procedures outlined under the Act and the cases on the other hand, the writer would choose the latter as being more orderly, more understandable, adequate in supplying various alternatives, and as furthering the general purpose of the Act to differentiate between the sentencing of adults and youth offenders.