U.S. v. Brackett

• Decision Date: 18 July 1977
• Docket Number: No. 75-1495,75-1495
• Citation: 567 F.2d 501,185 U.S.App.D.C. 394
• Parties: UNITED STATES of America v. Walter S. BRACKETT, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 501

567 F.2d 501

185 U.S.App.D.C. 394

UNITED STATES of America v. Walter S. BRACKETT, Appellant.

No. 75-1495.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 17, 1976.

Decided July 18, 1977.

Larry P. Ellsworth, Washington, D.C. (appointed by this court), for appellant.

Mark H. Tuohey, III, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry, Asst. U.S. Atty., Washington, D.C., were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, TAMM, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

Opinion for the court by Circuit Judge McGOWAN, in which Circuit Judges WRIGHT, TAMM, LEVENTHAL, and WILKEY join.

Separate concurring opinion by Circuit Judge MacKINNON, in which Circuit Judge ROBB joins.

Dissenting opinion by Chief Judge BAZELON, in which Circuit Judge ROBINSON joins.

McGOWAN, Circuit Judge:

In this appeal from the denial by the District Court of appellant's motion for collateral relief under 28 U.S.C. § 2255, the court en banc addresses the single issue of the retrospective reach of Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).

I

In 1960 appellant, then an inmate of the National Training School for Boys, assaulted a guard in an attempt to escape, and was indicted for first degree murder. Juvenile Court jurisdiction was waived, and appellant pleaded guilty in the District Court to manslaughter. On March 10, 1961, he came before the court for sentencing. Since he was then 15 years of age and therefore eligible for sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5010, his counsel requested that he be considered for sentencing under that statute. After observing that youth "is not a mitigating circumstance" so far as the crime in question was concerned, and that appellant and his co-defendant were "really murderers" who had been allowed to plead guilty to a lesser charge, and who had prior bad records, the judge denied counsel's request in these terms:

Now, obviously this is not a case for the Youth Corrections Act, both because of the nature of the offense and the nature of the prior records of these defendants. The court is more interested in the fate that befell the guard than it is in the future of these two boys.

Now, Brackett has shown vicious tendencies. In addition to plotting the escape plan involved in this case, after he pleaded guilty he tried to escape from the Marshal's van. He needs incarceration in a maximum security institution.

An adult sentence of 5 to 15 years was thereupon imposed; and no appeal was taken.

On December 10, 1969, appellant filed in the District Court a pro se motion under § 2255. Although counsel was appointed for him, no action of any kind appears to have been taken until 1974 when appellant pro se filed a second § 2255 motion in this court. That was returned to appellant with notification that the District Court was the proper place for filing. When he again submitted his motion to this court, it was referred to the District Court for disposition, where it was denied without a hearing as raising no meritorious issue. A division of this court affirmed without opinion.

Although a number of issues had been raised in the District Court and on appeal, appellant's petition for rehearing and suggestion for rehearing en banc asserted only that appellant had been improperly denied Youth Corrections Act treatment because there had been no express finding, as required by Dorszynski, that appellant would derive no benefit from such treatment. Because of our concern that, as alleged by appellant, divisions of this court may not have been applying Dorszynski uniformly, the appeal was placed en banc, as our order stated, "for the purpose of considering whether (Dorszynski ) shall be applied retroactively . . ."

II

The requisite manner of implementation of § 5010(d) of the Youth Corrections Act had heavily engaged the attention of this court prior to Dorszynski. That section provides that an adult sentence may be imposed "(I)f the court shall find that the youth offender will not derive benefit from treatment" under the alternatives provided by the Act. ¹ In United States v. Waters, 141 U.S.App.D.C. 289, 292, 437 F.2d 722, 725 (1970), we said that the sentencing judge's discretion to impose an adult penalty "is circumscribed by the findings of fact in the individual case which the District Judge is required to make either explicitly or implicitly." (Emphasis supplied). And this necessity of an affirmative finding of no benefit, albeit in either express or implied terms, was reasserted by this court in United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971).

In United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973), we examined the issue en banc. The result of that inquiry was a holding that the finding of no benefit must be explicit and not left to implication, together with the addition of a new requirement that the judge making such a finding must state the reasons which impelled him to do so. Dorszynski dispensed with this enlarged requirement of the articulation of reasons, but, as we had done in Coefield, held that the no-benefit finding must be explicit rather than implicit. In this latter regard, the Supreme Court stopped short of saying that the finding must track the statute in haec verba, but it did say (418 U.S. at p. 444, 94 S.Ct. at p. 3053) that the required quality of explicitness must be imparted by language "that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act."

When the present appeal was before a division of this court, the issue was joined in terms of whether the sentencing judge in fact met the standards subsequently set in Dorszynski. Appellant continues en banc to assert that the judge gave no consideration whatever to the possibility of affording appellant Youth Corrections Act treatment. This argument is not literally germane under the terms of our en banc grant, but the varying doctrinal development that has occurred over time in this court prompts us to take note of the situation as we see it.

The record reveals that the sentencing judge was clearly aware of the Youth Corrections Act and of appellant's eligibility as a matter of age for disposition under it. The comments made by him seem to us of such a nature as to constitute an implicit finding of no benefit within the meaning of the relevant statutory provision, and of our later interpretation of it in Waters and Ward. ² They were not, in our view, adequate to meet the higher standards of explicitness prescribed by this Court in Coefield, and more importantly by the Supreme Court in Dorszynski. These premises, are, thus, the point of departure for our consideration of the retroactivity issue framed by our en banc order.

III

Aged 15 at the time he was sentenced, appellant is now 31. In the intervening years, the sentencing judge has died, and appellant has twice been released on parole by the federal authorities, but each parole was subsequently revoked for parole violation. Released again in 1975 to the custody of South Carolina, he is presently out on parole from a South Carolina sentence of ten years for a criminal violation in that state. In his brief en banc, appellant asserts that, in the "unique facts presented by this case," resentencing under the Youth Corrections Act could only take the form, not of exposure to rehabilitative supervision, but of a release from further obligation under his federal sentence. This, so it is said, flows from the fact that the maximum sentence that can be given under YCA equals the maximum adult sentence, and time on parole is credited even if parole was subsequently revoked. Appellant received the maximum adult sentence of 15 years, and he has already served more than 15 years if his time out on parole is credited, which it is not in respect of an adult sentence but is under a YCA sentence.

We do not pursue this question of the precise relief to which appellant might be entitled if a remand for YCA sentencing were to be ordered, except to remark that, as envisioned by appellant, it does not entail his involuntary subjection to the improving influences of the Youth Corrections Division. We think, rather, that the facts giving rise to the claim are significant only as they illuminate the policies relevant to retroactivity. Those policies have been identified by the Supreme Court as involving three factors: (1) the purpose to be served by the new standards, (2) the extent of reliance by public authorities on the old, and (3) the effect of retroactivity on the administration of justice. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

The objective of the Supreme Court in its ruling in Dorszynski was to assure that the sentencing judge will give conscious consideration to YCA treatment for youthful offenders who might, because of the very fact of their youth, be saved from a life of crime by the youth-oriented treatment provided by Congress to this end in the YCA. Congress prescribed the age limits for that particularized rehabilitative effort. Appellant has long since exceeded them, as will have many, if not indeed most, others who collaterally challenge their sentences. This court confronted a similar problem in Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133 (1969), cert. denied, 397 U.S. 977, 90 S.Ct. 1098, 25 L.Ed.2d 272 (1970). There we refused to give retroactive application to the holding in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in a collateral attack by a prisoner who had not been afforded the hearing required by Kent before a juvenile offender is waived for adult trial. In doing so the court noted the fact that the defendant was no...