U.S. v. Oliver

• Decision Date: 05 October 1976
• Docket Number: No. 75-2161,75-2161
• Citation: 546 F.2d 1096
• Parties: UNITED STATES of America, Appellee, v. Michael Correll OLIVER, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1096

546 F.2d 1096

UNITED STATES of America, Appellee, v. Michael Correll OLIVER, Appellant.

No. 75-2161.

United States Court of Appeals Fourth Circuit.

Argued April 9, 1976.

Decided Oct. 5, 1976.

Bennie L. Dunkum, Richmond, Va. (court-appointed counsel) for appellant.

Joseph L. Ciolino, Atty., Dept. of Justice (William B. Cummings, U. S. Atty., Alexandria, Va., David A. Schneider, Asst. U. S. Atty., Richmond, Va., Richard L. Thornburgh, Asst. Atty. Gen. and Robert L. Keuch, Washington, D.C., on brief), for appellee.

Before CRAVEN and WIDENER, Circuit Judges, HADEN, District Judge ^*.

WIDENER, Circuit Judge:

The sole question raised on this appeal is whether the imposition of a fine as a condition of probation is compatible with the rehabilitative purposes of the Youth Corrections Act, 18 U.S.C. § 5010. We are of opinion that it is and affirm.

The appellant in this action, Michael Oliver, pleaded guilty on October 10, 1972 before the United States District Court for the Western District of Virginia to a charge of distributing marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1). Because of his status as a youth offender under 18 U.S.C. § 4209, he was eligible for sentencing under the Youth Corrections Act. Accordingly, the court imposed the following sentence:

"IT IS ADJUDGED that the defendant is sentenced to the custody of the Attorney General or his authorized representative for treatment and supervision pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b), and the execution of the sentence is suspended and defendant is placed on probation for a period of THREE (3) YEARS pursuant to 18 U.S.C. § 5010(a), and fined the sum of $1500, to be paid as directed by his supervising probation officer."

Effective January 3, 1973, jurisdiction over Oliver during the period of his probation was transferred to the Eastern District of Virginia where he maintained his permanent residence. On September 23, 1975, Oliver's probation officer made complaint to the United States District Court for the Eastern District of Virginia charging that he had not been complying with the special condition of his probation in that he had not adequately kept up with his fine payments. Oliver's probation officer requested a hearing to determine whether probation should be revoked.

A hearing was held on the complaint on September 29, 1975, at which time it was determined that Oliver had paid but $675 of the original $1500 fine imposed instead of $50 per month which Oliver and the probation officer had agreed should be paid. Based upon this, the court construed the sentence of the Western District to be a fine as a condition of probation and found it had been violated by non-payment. Oliver's period of probation was extended for a period of one year from October 9, 1975 (the expiration date of the original probation period), and the balance due on the original fine was ordered paid within three months.

Oliver contends here, as he did at the hearing when his probation was extended, that the imposition of a fine as a condition of probation is impermissible under 18 U.S.C. § 5010(a), which provides:

"If the court is of opinion that the youth offender does not need commitment, it may suspend the imposition or execution of sentence and place the youth offender on probation." ¹

He further asserts that the order below extending the probation and requiring the payment of the fine, which was brought about by, and based upon, his failure to pay the fine in question, must be set aside.

In support of his position as to the propriety of fines under the Youth Corrections Act, the appellant cites a series of cases from the Ninth Circuit. See United States v. Hayes, 474 F.2d 965 (9th Cir. 1973); United States v. Mollet, 510 F.2d 625 (9th Cir. 1975) (one judge dissenting); United States v. Bowens, 514 F.2d 440 (9th Cir. 1975). In Hayes, the court, after concluding that the imposition of a fine was punitive in nature, found that a combination of rehabilitative confinement under 18 U.S.C. § 5010(b) and a fine was improper under the Youth Corrections Act. This position was followed in Mollet and again in Bowens and extended its prohibition to suspended sentences imposed under 18 U.S.C. § 5010(a), being of opinion that a trial court's election to commit a youthful offender for rehabilitative treatment under the alternative sentencing provisions of the Youth Corrections Act foreclosed the imposition of a fine, certainly, and probably even the restitution of stolen funds, as a condition of probation.

The Fifth Circuit, in Cramer v. Wise, 501 F.2d 959 (5th Cir. 1975), has agreed with Hayes, thus lending support to the defendant's position. ²

With deference to those cases, we are unpersuaded that the imposition of a fine is inconsistent with the purposes of the Youth Corrections Act. We begin with the observation, as did the court in Cramer, p. 961, that the Youth Corrections Act, by its terms, does not prohibit the imposition of monetary fines, but only precludes the imposition of a prison sentence. Moreover, the statutory language represents a significant change from the original draft of the Act submitted to Congress by the Judicial Conference Committee on Punishment of Crimes. The Conference draft provided:

"(T)he court may, as a penalty for the offense and in lieu of the penalty otherwise provided by law, sentence the youth offender to the custody of the Authority for treatment and supervision until discharged . . . ." (Emphasis added)

See Cramer at 961. Rather than adopting the broad language of the Conference, Congress chose to amend the draft to read "in lieu of the penalty of imprisonment," 18 U.S.C. § 5010(b), rather than "in lieu of the penalty otherwise provided by law" as used in the Committee draft. It would appear, therefore, that Congress intended to preclude only the power to imprison in an ordinary prison rather than in a youth facility when sentencing under the Act. Of course, the length of the sentence is also affected. As such, neither the statutory language nor the Act's legislative history supports the interpretation contended for by the defendant.

In addition, we are of opinion that an interpretation of the Act which would preclude the trial court from imposing a fine as a condition to probation would not only be contrary to the literal wording of the statute, but would also diminish the liberal use of the probation alternative. This was held in United States v. Kitson, No. 74-211-ORL-Cr-R (M.D.Fla.1975), in which a sentencing judge construed Hayes as only limiting the power to impose a fine in addition to commitment under § 5010(b), not as a condition of probation when commitment was suspended under § 5010(a)....