Tatum v. United States

• Decision Date: 01 November 1962
• Docket Number: No. 16773.,16773.
• Citation: 310 F.2d 854,114 US App. DC 49
• Parties: Earl J. TATUM, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

114 US App. DC 49, 310 F.2d 854 (1962)

Earl J. TATUM, Appellant, v. UNITED STATES of America, Appellee.

No. 16773.

United States Court of Appeals District of Columbia Circuit.

Argued March 14, 1962.

November 1, 1962.

Mr. Vernon L. Wilkinson, Washington, D. C. (appointed by this court), for appellant.

Mr. Paul A. Renne, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., Victor W. Caputy, Asst. U. S. Atty., and Nathan J. Paulson, Asst. U. S. Atty., at the time of argument, wereon the brief, for appellee.

Before WILBUR K. MILLER, FAHY, and BURGER, Circuit Judges.

PER CURIAM.

On July 28, 1961, in sentencing appellant under D.C.Code Ann. § 24-203: (1961), pursuant to a motion to correct an alleged invalid sentence, the District Court vacated an earlier sentence, entered June 2, 1961, of three to nine years under the Federal Youth Corrections Act, 18 U.S.C. § 5010(c) (1958), for robbery. No appeal had been taken from the June judgment and sentence. The present appeal was allowed by this court on the basis of appellant's petition alleging error only with respect to the sentencing.

When the motion for correction of sentence was heard the court and both counsel stipulated that the original sentence did not conform to the statute since the Youth Corrections Act does not permit a minimum sentence. On resentencing the District Judge explained the reason for fixing a minimum term in his original sentence was to assure a break from Tatum's environment.¹

The court then vacated the original sentence and imposed a new sentence of thirty-four months to one hundred and two months under the indeterminate sentence law, D.C.Code Ann. § 24-203 (1961), rather than under the Youth Corrections Act.

If appellant's first sentence was lawful a second sentence could not lawfully be imposed which increased it or made it more severe, once he had commenced serving confinement under it. Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1873); In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 500 (1943). Cf. United States v. Benz, 282 U.S. 304, 51 S.Ct. 113, 75 L.Ed. 354 (1931). See also United States v. Rosenstreich, 204 F.2d 321 (2d Cir., 1953). The first sentence although erroneous in that part which undertook to fix a three year minimum, was a lawful sentence which appellant began to serve as a sentence under the Youth Corrections Act. Therefore a new sentence could not lawfully be imposed if it was increased or more severe. The question then arises whether the second sentence imposed must be regarded as an increased or more severe sentence

It is contended that the second or "corrective" sentence is more severe in that it has a fixed three year minimum, whereas the Youth Corrections sentence has none; that it is a sentence to imprisonment where as the Youth Corrections sentence is primarily rehabilitative.

It is entirely speculative, however, whether a Youth Corrections sentence would be more or less severe in its duration than the second sentence imposed by the court. Cunningham v. United States, 256 F.2d 467 (5th Cir., 1958), demonstrates that a sentence under the Youth Corrections Act can well be longer than an adult penal sentence. There a youth was convicted of a misdemeanor carrying a maximum penalty of one year but was committed under the Youth Corrections Act for a six year maximum. 18 U.S.C. § 5010(b). After serving one year he sought release contending that confinement for more than one year was an unconstitutional application of the Youth Corrections Act. His claim was rejected and he was subject thus to confinement more than one year and the risk of six years' confinement for an offense which had he been sentenced under the adult penal statute would have been only one year, or less. It is open to question whether the minimum term under the second sentence makes it more severe in duration than the valid limits of the first since there is no way of knowing the length of the term to which it is compared.

However, we see one distinction of critical importance, especially to a young man, and that is the factor of the record of a criminal conviction which is inseparable from the second sentence. A youth offender committed under the provisions of the Youth Corrections Act upon his release...