United States v. Riley, 72-1227

• Decision Date: 03 July 1973
• Docket Number: 72-1228.,No. 72-1227,72-1227
• Parties: UNITED STATES of America v. Anthony A. RILEY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

157 US App. DC 27, 481 F.2d 1127 (1973)

UNITED STATES of America v. Anthony A. RILEY, Appellant.

Nos. 72-1227, 72-1228.

United States Court of Appeals, District of Columbia Circuit.

Argued February 22, 1973.

Decided July 3, 1973.

Paul R. Hoeber, San Francisco, Cal., of the bar of the Supreme Court of California, pro hac vice, by special leave with whom William Gray Schaffer, Washington, D.C., was on the brief, for appellant. Jonathan Axelrod, Washington, D.C., also entered an appearance for appellant.

David M. Bullock, Asst. U.S. Atty., with whom Harold H. Titus, Jr., U.S. Atty., John A. Terry and Brian W. Shaughnessy, Asst. U.S. Attys., were on the brief, for appellee. Harry J. McCarthy, Asst. U.S. Atty., also entered an appearance for appellee.

Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.

BAZELON, Chief Judge:

On November 23, 1971, appellant pled guilty to armed robbery and attempted armed robbery, arising out of two separate incidents at the same dry cleaning establishment. On March 10, 1972, he was sentenced to two to ten years' imprisonment on the first charge and one to three years' imprisonment on the second, the sentences to run concurrently.

He appealed, alleging that the District Court improperly denied him Youth Corrections Act sentencing pursuant to 18 U.S.C. § 5010 (1970).¹ This court ordered motions for summary reversal and summary affirmance held in abeyance pending decisions by the court en banc in United States v. Coefield,² United States v. Reed,³ and United States v. Hoston.⁴

Appellant also moved for a stay of the adult sentence, and for interim commitment to the Lorton, Virginia, Youth Corrections facility. At oral argument on that motion, the Government advised the court that an expanded youth facility would shortly become available at Lorton, and that this information had not been before the District Judge at sentencing. We accordingly remanded the record "to afford the District Court an opportunity to reconsider its sentence, if it is so disposed," and stated:

We do not know what weight, if any, was given the overcrowded condition of the Lorton youth facility by the District Court at the time of sentencing.⁵

The District Court declined to alter the adult sentence, and this court subsequently declined to rule summarily on the merits or to stay the sentence.

Decisions have now issued in Coefield, Reed and Hoston, and this case has been argued. We vacate the adult sentence and remand for resentencing.

I

Section 5010(d) of the Youth Corrections Act states that an otherwise eligible offender may be sentenced as an adult "if the court shall find that the youth offender will not derive benefit from treatment under this Act."⁶ In Coefield we held that this finding must be explicit, and that it must be supported by a statement of "reasons from which it can be determined that the sentencing decision is consistent with the purposes of the Act."⁷

We also held that when the District Court has ordered a temporary commitment for observation and study pursuant to section 5010(e), and has followed that study's recommendations, "additional reasons need not be stated."⁸ But this is merely an adoption of the reasons stated in the section 5010(e) report.⁹ It does not 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.¹⁰

II

In this case the District Court ordered a section 5010(e) study and followed its recommendation that appellant be denied Youth Corrections Act sentencing. Since the District Judge did not state additional reasons,¹¹ we must turn to the section 5010(e) report, which the Judge ordered sealed and made a part of the record, to see whether Coefield's requirements have been met.¹²

One justification for adult sentencing appeared in each section 5010(e) recommendation available to the sentencing judge: the Lorton facility had no room. We may dispose of this at the outset. Tillman held "There is no legal authority for diverting otherwise eligible youths to adult institutions due solely to lack of space." Rather, we said, "the courts should respond ... by ordering that facilities adequate to handle all but the `exceptional case' be provided."¹³

Moreover, the overcrowding cited existed only at the Lorton Youth Center. An affidavit placed before the sentencing judge by defense counsel indicated that there was ample space at other Youth Corrections facilities. There is no authority for refusing Youth Corrections Act sentencing to a District of Columbia code offender on the sole ground that the Lorton facility is full. Pursuant to sections 5010(b) and (c), all Youth Corrections Act sentences are merely "to the custody of the Attorney General." The only consequence of the fact that a youth offender violated a law applicable exclusively to the District of Columbia is that his treatment and rehabilitation may be financed from the appropriation for the District of Columbia.¹⁴

But, if we exclude the consideration of overcrowding, the record is devoid of reasons demonstrating the required "`present and visible' rationality" of an adult sentence. The Lorton psychologist, whose findings and analysis formed the base of the pyramid of recommendations that reached the sentencing judge, openly stated his belief that Riley "could benefit from the programs of this institution."¹⁵ The three member Lorton Classification Committee rendered a substantially similar report two days later:

A commitment to the Youth Center would be most appropriate under normal conditions. However, because of the current overcrowded space and facilities at the Lorton Youth Center, meaningful treatment cannot be provided.

When these reports reached the District of Columbia Board of Parole, it too recommended the denial of a Youth Corrections Act sentence because of the overcrowding at Lorton. Drawing on the reports of the psychologist and the Classification Committee, its statement at first blush adds additional elements:

Mr. Riley has a pattern of aggressive robbery type of offenses, with weapons involved. He has been on probation and involved in juvenile correctional programs but such measures have not reversed the trend. He is well versed in current asocial activity and appears quite sophisticated in spite of his age. The Board does not see this case as being a priority type of Youth Center case.¹⁶

The District Judge read these statements, with the exception of the last sentence quoted, into the record at sentencing and again on the remand. They are at least addressed to the issue that is relevant on Youth Corrections Act sentencing—the defendant's rehabilitative potential.

But they are fatally flawed here by two defects. First, even if these statements are relevant to the proper inquiry, they do not provide reasons supporting the required no-benefit finding. As we observed in Tillman, a prior record, particularly of juvenile offenses, does not compel a finding that an offender would not benefit from Youth Corrections treatment. "While an offender's prior record is clearly pertinent, its mere recitation, without a showing of how it evidences his incapacity to benefit from rehabilitative treatment, is not an adequate reason."¹⁷ Nor does prior probation or experience in "correctional programs," whose rehabilitative programs are unarticulated, alone demonstrate that appellant would not benefit from the rehabilitative treatment provided under the Act. We find no statement of reasons connecting these ambiguous statements with a conclusion that appellant would not benefit.

Second, it is doubtful, especially in light of later developments in the sentencing process, that the authors of these comments believed that they would support the no-benefit finding that the trial judge made. Riley's trial counsel, showing commendable dedication, communicated with the Federal Bureau of Prisons, and was informed that space existed at Youth Corrections facilities other than Lorton.¹⁸ He conveyed this information to the Vice Chairman of the District of Columbia Board of Parole. The Vice Chairman responded by writing the District Court a most candid letter for the Board. In pertinent part, it read:

A careful study of the Board\'s recommendation indicates, in the last sentence of the ... paragraph quoted above, "The Board does not see this case as being a priority type of Youth Center case" that under normal circumstances if there was space available at the Lorton Youth Center Mr. Riley would have been recommended for such a commitment.

... Certainly the Board would see placement in a Bureau of Prison youth facility as being superior to placement in an adult facility.

Thus, not only did the Board fail to articulate reasons, but it saw none sufficient to support a no-benefit finding.

In Coefield we said that a trial judge may adopt the reasons in a section 5010(e) report as his own when he follows that report. But when the report provides no reasons cognizable under the Act, neither reliance on the report itself nor a simple oral recitation of the factual statements made in that report will suffice. Moreover, even when reasons are supplied, if the report finds the sum total of permissible reasons inadequate to support a finding of no benefit, it is incumbent on the sentencing judge to articulate his reasons for reaching a contrary conclusion. Absent such an explanation, the offender must be sentenced under the Act.

Since the section 5010(e) report does not support the imposition of an adult sentence, and since the trial judge added no reasons of his own, we must vacate the sentence and remand for resentencing in compliance with Coefield.¹⁹ As we stated in Tillman, nothing precludes the sentencing judge from ordering a new section 5010(e) report to aid him in resentencing.²⁰

So ordered.

WRIGHT, Circuit Judge (concurri...