U.S. v. Smith

• Decision Date: 10 August 1982
• Docket Number: Nos. 80-1380,80-1479,s. 80-1380
• Citation: 683 F.2d 1236
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Ann SMITH, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Clifford Rickard ARTHUR, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1236

683 F.2d 1236

UNITED STATES of America, Plaintiff-Appellee, v. Rebecca Ann SMITH, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Clifford Rickard ARTHUR, Defendant-Appellant.

Nos. 80-1380, 80-1479.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 18, 1981.

Decided Aug. 10, 1982.

Mark E. Griffin, Agana, Guam, for Smith and Arthur.

Sidney I. Lezak, U. S. Atty., Portland, Or., for United States; Charles Turner, Asst. U. S. Atty., Portland, Or., on brief.

Appeals from the United States District Court for the District of Oregon.

Before BROWNING, CHOY, WALLACE, KENNEDY, ANDERSON, SKOPIL, PREGERSON, POOLE, FERGUSON, CANBY and BOOCHEVER, Circuit Judges.

PREGERSON, Circuit Judge:

These consolidated appeals, both arising in the District of Oregon, present the question whether a "split sentence" is lawful under the Youth Corrections Act ("YCA"), 18 U.S.C. §§ 5005-26, and, if so, whether the offender must be segregated from adults during confinement.

The appellant in No. 80-1380, Rebecca Ann Smith, was indicted in February 1980 on one count of embezzling funds from the federally-insured bank where she worked, in violation of 18 U.S.C. § 656. She entered a guilty plea, and was sentenced under the YCA, 18 U.S.C. § 5010(a). (Smith was twenty years old at the time of sentencing.) She received a five-year sentence, but on condition that she be "confined in a jail-type setting" for forty-five days, ¹ execution of the remainder of the sentence was suspended and Smith was placed on five years' probation.

The appellant in No. 80-1479, Clifford Rickard Arthur, was indicted in March 1980 on one count of stealing two bicycles on the Warm Springs Indian Reservation, in violation of 18 U.S.C. §§ 1153 and 661. He entered a guilty plea, and was sentenced under the YCA. ² (Arthur was nineteen years old at the time of sentencing.) He received a three-year sentence, but on condition that he serve thirty days "in a jail type institution," execution of the remainder of the sentence was suspended and Arthur was placed on five years' probation.

Both Smith and Arthur appeal their sentences. They concede that the YCA permits a trial court to suspend the execution of sentence and place the youth offender on probation. 18 U.S.C. § 5010(a). They contend, however, that it does not authorize the "split sentences" imposed here, in which a brief period of incarceration is made a condition of probation. The government replies that the YCA incorporates the general probation statute, 18 U.S.C. § 3651, which in turn explicitly allows split sentences. It further argues that a youth offender who is given such a split sentence may be incarcerated in an adult-type jail.

These issues have apparently not been addressed by other circuits. A panel of this circuit has held that the Supreme Court's opinion in Durst v. United States, 434 U.S. 542, 98 S.Ct. 849, 55 L.Ed.2d 14 (1978), implies that split sentences are proper under the YCA and that our pre-Durst ruling to the contrary in United States v. Marron, 564 F.2d 867 (9th Cir. 1977), is no longer good law. United States v. McDonald, 611 F.2d 1291, 1294 (9th Cir. 1980). The issue, however, arose in McDonald in a tangential fashion and had not been raised, argued, or briefed by the parties. We therefore set the instant appeals for en banc consideration to clarify the law of this circuit as to the interrelation between the YCA and the split sentence provision of the general probation statute. ³

I. Is a split sentence permissible under the YCA?

The general probation statute, 18 U.S.C. § 3651, gives district courts power to impose a split sentence on a defendant convicted of a non-capital offense punishable by imprisonment for more than six months but less than life. More precisely, section 3651 allows the court to sentence such a defendant to a term:

in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.

The Supreme Court has stated that one section of the YCA, 18 U.S.C. § 5023(a), ⁴ "incorporates by reference the authority conferred under the general probation statute," Durst v. United States, 434 U.S. 542, 549, 98 S.Ct. 849, 853, 55 L.Ed.2d 14 (1978), and was intended "to preserve to sentencing judges their powers under the general probation statute when sentencing youth offenders to probation." Id. at 551, 98 S.Ct. at 854. It would seem to follow that section 5023(a) engrafts the split sentence provision of section 3651 onto the YCA, so that a court placing a youth offender on probation under the YCA would have the power to require the offender to serve up to six months of confinement before his probationary period commenced.

There is, however, a strong argument against that conclusion. The split sentence authorization was added to section 3651 eight years after the enactment, in 1950, of the YCA, including section 5023(a). ⁵ Hence, in 1950 when Congress sought to ensure that the YCA would leave "the power of the court to grant probation ... undisturbed," ⁶ federal courts had no power to impose a split sentence at all. ⁷

The crucial issue, therefore, is whether Congress intended section 5023(a) to incorporate into the YCA the specific provisions of section 3651 as of 1950, or whether it intended that subsequent changes in the general probation authority of federal courts would apply in the YCA context as well. The answer is by no means self-evident, ⁸ and reasons can be given in support of either conclusion. We believe, however, that the more persuasive reasons are those indicating an intent that post-1950 amendments to the probation statute should apply to YCA sentencing.

This is not to deny that some factors do suggest the contrary conclusion. For example, the Durst Court, as noted above, spoke of section 5023(a) as designed to "preserve" in YCA proceedings the authority of courts under section 3651-a term that suggests specific incorporation of section 3651 as it existed when the YCA was passed. Also, Durst relied in part on explicit legislative history manifesting a Congressional intent to allow fines to be imposed as part of YCA sentences. Durst, supra, 434 U.S. at 552-53, 98 S.Ct. at 854-55. There is no corresponding legislative history indicating an intent to allow split sentences under the YCA. ⁹ Indeed, the use of a split sentence involving incarceration for a determinate period of at most six months is arguably inconsistent with the general sentencing scheme of section 5010, under which the sentencing court "may only order an indeterminate sentence for six years or longer," Watts v. Hadden, 651 F.2d 1354, 1372 (10th Cir. 1981). See United States v. Jackson, 550 F.2d 830, 831 (2nd Cir. 1977). ¹⁰ Such a sentence is also seemingly at odds with the literal language of section 5010(a), which makes probation an option "(i)f the court is of the opinion that the youth offender does not need commitment. ¹¹

Nevertheless, these factors are outweighed by those which suggest that courts sentencing youth offenders are meant to enjoy whatever powers are conferred by section 3651 as amended since 1950. Despite the Durst Court's characterization of section 5023(a) as "incorporat(ing) by reference the authority conferred under the general probation statute," Durst, supra, 434 U.S. at 549, 98 S.Ct. at 853, section 5023(a) does not appear to be a "statute of specific reference"-i.e., one that literally "adopts" or "incorporates" a pre-existing statute. If section 5023 were a statute of specific reference, the usual canons of statutory interpretation would counsel us to read it as incorporating the probation statute as of 1950, unaffected by the 1958 amendment, unless there is some very clear indication to the contrary. See Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 564, 82 L.Ed. 858 (1938); Pearce v. Director, Office of Workers' Compensation Programs, 603 F.2d 763, 767 (9th Cir. 1979). But section 5023(a) is not designed to adopt by reference the general probation statute and "mak(e) it as much a part of the later act as though it had been incorporated at full length." Engel v. Davenport, 271 U.S. 33, 38, 46 S.Ct. 410, 412, 70 L.Ed. 813 (1926). Rather, it merely provides that the YCA is not to "be construed in any wise to amend, repeal, or affect the provisions of" the probation statute. Providing, in this manner, that the YCA not be read as affecting section 3651 actually emphasizes that these are distinct statutes, and certainly exhibits no intent to make section 3651 an integral part of the YCA. Thus the canon of construction applicable to statutes of specific reference is inapplicable here. Rather, section 5023(a) indicates a congressional intent that whatever powers the probation statute grants courts generally-including powers added by subsequent amendments-should be available in the YCA context as well. ¹²

Most importantly, we believe that reading the YCA as allowing courts to impose split sentences on youth offenders is the more appropriate interpretation in view of the policies that the YCA is designed to advance. It is proper, and indeed essential, to interpret the words of a statute in the light of the purposes Congress was seeking to serve. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979). Here, permitting split sentences is consistent with the Supreme Court's emphasis that "the YCA strongly endorses the discretionary power of a judge to choose among available sentencing options," Ralston v. Robinson, --- U.S. ----, 102 S.Ct. 233, 237, 70 L.Ed.2d 345 (1981), and "was meant to enlarge, not restrict, the sentencing options of the federal trial courts." Dorszynski v. United States, ...