United States v. Phillips, 72-1504.

• Decision Date: 06 August 1973
• Docket Number: No. 72-1504.,72-1504.
• Parties: UNITED STATES of America v. Thomas M. PHILLIPS, a/k/a Thomas P. Bailey, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

156 US App. DC 217, 479 F.2d 1200 (1973)

UNITED STATES of America v. Thomas M. PHILLIPS, a/k/a Thomas P. Bailey, Appellant.

No. 72-1504.

United States Court of Appeals, District of Columbia Circuit.

May 17, 1973.

As Amended August 6, 1973.

Edward L. Koepenick, Bethesda, Md. (appointed by this Court), was on the brief for appellant.

Harold H. Titus, Jr., U. S. Atty., John A. Terry and Peter C. Schaumber, Asst. U. S. Attys., and Robert J. Higgins, Asst. U. S. Atty., at the time the brief was filed, were on the brief for appellee.

Before BAZELON, Chief Judge, WISDOM,^* Circuit Judge for the Fifth Circuit, and RICHEY,^** U. S. District Judge for the District of Columbia.

BAZELON, Chief Judge:

Appellant was convicted of robbery.¹ Since the grounds urged for reversal are without merit, the conviction is affirmed. But there is a matter relating to the administration of the Youth Corrections Act which requires our attention.

Appellant was 20 years of age at the time of his conviction and, at the direction of the trial judge, was evaluated for Youth Corrections commitment pursuant to section 5010(e) of the Act. The 5010(e) report recommended adult sentencing and, relying on that report, the trial judge imposed an adult sentence of 2-6 years. The sentencing occurred before this court's decisions in United States v. Coefield and United States v. Reed & Hoston.² This case was on appeal when those decisions issued. We think they require that, in the present case, the sentence be vacated and the case remanded for reconsideration of Youth Corrections treatment.

I

An offender less than 22 years of age at the time of his conviction is eligible for Youth Corrections Act treatment.³ The Act provides the trial judge with four options: (1) granting probation, § 5010(a); (2) committing the offender to a federal Youth Center for up to six years' indeterminate sentence, § 5010(b); (3) committing the offender for a maximum term of over six years but not exceeding the maximum sentence for the crime involved, § 5010(c); or (4) sentencing the offender as an adult, § 5010(d). "Congress has found that young people between the ages of 16-22, especially, were hopeful subjects for rehabilitation," hence clothed them with a presumptive right to treatment under the Act.⁴ Accordingly, an adult sentence may be imposed "only if the applicable facts in the individual case meet the statutory requirements,"⁵ which include a finding that the offender "will not derive benefit from rehabilitative treatment" under the Act.⁶ This court has held that the no-benefit finding must be explicit and affirmative;⁷ that it is not enough to merely track the language of the statute;⁸ and that the basis for the court finding must appear in a statement of "reasons from which it can be determined that the sentencing decision is consistent with the purposes of the Act."⁹

We also defined the scope of appellate review:

What Congress has done, out of its urgent concern for saving the young while there is still time, is to require of the sentencing court in one limited but highly important area of sentencing the exposure on the record of the factors which informed and shaped the particular exercise of its discretion. An appellate court can only be concerned with the rationality of those factors in relation to Congressional objectives.¹⁰

The relevant Congressional objective is that an eligible offender should be denied Youth Corrections treatment "only in the exceptional case where the sentencing judge is convinced the youth is incorrigible and would derive no help from the program."¹¹ This is the legal criterion against which a sentencing court's reasons are to be measured.

While we have held that a denial of Youth Corrections treatment must be accompanied by a statement of reasons, we have also said that where a trial judge orders and follows the recommendation of 5010(e) study, "additional reasons need not be stated, although, of course, the judge is not precluded from adding reasons of his own."¹² This presupposes that the report provides the requisite reasons. In that case, when the sentencing judge adopts the reasons in the 5010(e) report as his own, a restatement would be redundant. This adoption does not, however, obviate the need for exposure of the "factors which informed and shaped" the sentencing decision, nor relieve this court of responsibility to determine whether those reasons, from whatever source, demonstrate a "present and visible" rationality in relation to Congressional objectives.¹³

II

When an offender is committed for observation pursuant to 18 U.S.C. § 5010(e), he is assigned to a Youth Center Classification Committee composed of an administrator, a parole officer, and a clinical psychologist. The parole officer, a social worker, submits a written classification study reviewing the offender's background, prior record, and the circumstances of the instant offense. The clinical psychologist also submits his individual evaluation. The three professional staff members of the Committee then prepare a joint evaluation and recommendation. This completed study is forwarded to the D. C. Board of Parole,¹⁴ which makes its own recommendation in a covering letter and transmits the report to the District Court. These documents comprise the 5010(e) evaluation.

III

In the present case, the 5010(e) report recommended adult sentencing and the Board of Parole joined in that recommendation. The trial judge had only the following to say about the report and the accompanying transmittal letter:

The Court has received a report from the Youth Center recommending against incarceration there stating among other things that the defendant appears to be a street-wise individual; that they feel he would not benefit from the Youth Program and they recommend that he be sentenced as an adult.

Accordingly, since that is the purpose of the 5010(e) study, to determine whether or not the subject is likely to be rehabilitated, the Court will follow the suggestion of the Board of Parole and the report from the Youth Center and will impose sentence as an adult.

Since the judge stated no independent reasons for adult sentencing we must now turn to the 5010(e) study, which suggests only two reasons:¹⁵ (A) that appellant is a "rather street-wise individual;" and (B) that he has failed to prove himself because he was on Youth Act probation when arrested for the instant offense.

A. The label "street-wise"

The Parole Officer's reference to appellant as "a rather street-wise individual," was echoed in the Board of Parole's transmittal letter and repeated by the trial judge. But the report, itself, does not reveal the meaning of this label; nor does an examination of appellant's background. He was convicted of robbery without a weapon, and had only one prior adult conviction — for petit larceny. He is described as not using drugs, and neither assaultive nor defiant of authority. He held a full time job, albeit an unskilled one, for over a year prior to his incarceration. Neither this court nor the trial court should be left to conjecture about what the term "streetwise" is intended to convey — or to conceal. Without further explanation, this label is a shallow "litany or prescribed formula."¹⁶

B. The prior Youth Act sentence

The Classification Committee evaluation said of appellant's prior Youth Act probation:

It was felt at the time of sentencing on the earlier petit larceny charge in the fall of 1970, that appellant if placed in the probationary setting with the strong guidance and influence of a probation officer, . . . would have been able to make a satisfactory adjustment without the services of the Youth Center. However, it appears as though Mr. Phillips returned to his former family situation and was unable to adequately adjust which resulted in his involvement with the instant case.

The Classification Committee feels that Mr. Phillips has had the opportunity to prove himself in the community and he failed to make a satisfactory adjustment. Therefore, . . . the Committee recommends that Mr. Phillips be sentenced as an adult with the minimum time considered. . . .

The Parole Board's letter also cited the fact that appellant committed the instant offense while serving a Youth Act probation sentence.¹⁷ In United States v. Coefield, we recognized that a no-benefit finding might be premised on "a prior sentence under the Youth Corrections Act, . . . followed by a subsequent offense."¹⁸ We presumed, however, that the subsequent offense would evidence a failure to benefit from Youth Act treatment. Since appellant's prior sentence was "without the services of the Youth Center," his subsequent offense could not indicate such a failure. In addition, the report notes that Phillips' return to his "former family situation" played a substantial part in his involvement in the instant offense.¹⁹ Commitment to a Youth Center,²⁰ however, might also mitigate that environmental pressure.

It is important to note that the 5010(e) report nowhere asserts that appellant would not benefit from treatment at the Youth Center. The report indicates just the opposite. The clinical psychologist's evaluation described the factors which caused appellant's criminal behavior:

The root of his feelings of inadequacy seem to lie in his inability to provide support for himself and his family. . . . He appears to feel a responsibility, since his father is dead, for helping his mother financially, in addition to taking care of his own children and their mother. Because he is too deficient in education and marketable skills to discharge this felt responsibility . . . appellant feels frustrated and impotent. The visible result of these feelings has been criminal activity to supplement his earned income.

Recognizing appellant's rehabilitative potential, the psychologist recommended training in a marketable skill and remedial education — "this would relieve Phillips' anxiety . . . and give him a basis" for...