George L. Brooks, Petitioner-appellant. v. United States of America, Respondent-appellee, 497 F.2d 1059 (6th Cir. 1974)

This appeal from the denial of a motion to vacate sentence under 28 U.S.C. 2255¹  requires us to determine whether a court before sentencing as an adult, a person eligible for treatment under the Youth Corrections Act, 18 U.S.C. 5010,²  must make an express finding that the yough offender will not benefit from the treatment provided by that Act and give reasons for that finding. We hold that the court must make such an express finding supported by a statement of its reasons.

This case arose out of an attempted armed bank robbery on May 21, 1970, in which appellant, then twenty years old, fired several shots at a bank guard. The guard, who was not hit, ordered appellant to drop his gun and, when appellant failed to obey, shot him. Appellant was grievously wounded and required intensive hospital care for several days.

Subsequently, on December 14, 1970, appellant, then twenty-one years old, pleaded guilty to an indictment charging him with violating 18 U.S.C. 2113(d).³  The court, without expressly considering appellant's eligibility for treatment under the Youth Corrections Act, sentenced him as an adult to twenty years imprisonment. This lengthy sentence was imposed despite appellant's youth, his good family ties, his educational background, and his previously unblemished record. In the order imposing this sentence, the court also directed that Brooks be given a complete psychiatric and physical examination. The commitment for study was not made, however, pursuant to 18 U.S.C. 5010(e) or 18 U.S.C. 4208(b).

On April 16 of the next year, appellant filed a motion for reduction of sentence. Although the court denied the motion, it is evident from the transcript of the proceeding in connection with the motion that the court was deeply troubled by the severity of the sentence it had imposed.⁴  In addition to commenting on appellant's youth, his family circumstances, his educational achievement, and his lack of a previous record, the court characterized his action as irrational, expressed concern that no motive or reason for the action had been ascertained, and concluded that appellant must have suffered from some kind of emotional strain when he committed the crime. The court added, 'I tried every way on earth to think if I could impose any lesser sentence. I've never given less than a 15 year sentence in a bank robbery case, and even then that's where a firearm was not used.' The court concluded that 'I think he wanted to hurt himself and his family, and I think he needs help desperately.' At the same time, the court expressed its opinion that appellant would compile an exemplary record at the penal institution in which he would be confined and that appellant is 'a bright young man and there are opportunities available to him to advance his education and skill. It need not destroy him.'

Thereafter, on June 14, 1973, appellant, having served two and one-half years of his sentence, filed this motion to vacate on the grounds that the district court, by failing to make an express finding that he could not benefit from the treatment provided by the Youth Corrections Act, had imposed an illegal sentence. The government responded that the imposition of the sentence under 18 U.S.C. 2113(d) in and of itself constituted a finding that appellant would not benefit from the Act and that such an implicit finding was legally sufficient. The district court agreed, and, without ordering further examination of appellant, also expressly found, in accordance with the recommendation made by the magistrate to whom the motion had been referred, that appellant would not benefit from treatment under 18 U.S.C. 5010(b) and (c). This appeal followed.

The Federal Youth Corrections Act provides, in relevant part, that

If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision. 18 U.S.C. 5010(c).

This Act was intended to afford youthful offenders, in appropriate cases, an opportunity to receive rehabilitative treatment designed to enable them to become useful members of their communities and to avoid the dangers inherent in close confinement with experienced adult criminals. Brisco v. United States, 368 F.2d 214 (3d Cir. 1966). The Youth Corrections Act 'provides a preferred sentencing alternative which must be used in sentencing a youthful offender unless, in the language of 5010(d), 'the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c) . . .." Cox v. United States, 473 F.2d 334, 337 (4th Cir.) (en banc), cert. denied. 414 U.S. 869, 94 S. Ct. 183, 38 L. Ed. 2d 116 (1973). Accordingly, persons eligible for sentencing thereunder should be denied the rehabilitative treatment provided by the Act only in those exceptional cases where they are so incorrigible that they could not benefit from it. United States v. Phillips, 156 U.S.App.D.C. 217, 479 F.2d 1200 (1973); United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973) (en banc).

Yet, despite the purpose of the Act and its direction that a district court affirmatively determine that a youth offender will not benefit from the treatment provided by the Act before sentencing him as an adult under other statutory provisions, courts have been unable to agree whether this required determination must be made expressly or may be made implicitly. At least one court has upheld an adult sentence imposed upon a youthful offender based upon an implicit determination, holding that a reviewing court may infer such a determination solely from the imposition of an adult sentence. United States v. Dorszynski, 484 F.2d 849 (7th Cir. 1973), cert. granted, 414 U.S. 1142, 94 Sup.Ct. 892, 39 L. Ed. 2d 99 (1973). Although other courts have stated that implicit findings are permissible, they have, at the same time, remanded the very cases in which such language appears to the district courts for an explicit determination whether the youth offenders would benefit from treatment under the Act. Cox v. United States, supra; United States v. Jarratt, 471 F.2d 226 (9th Cir. 1972), cert. denied, 411 U.S. 969, 93 S. Ct. 2161, 36 L. Ed. 2d 691 (1973). See also Williams v. United States, 476 F.2d 970, 972 (3d Cir. 1973), where the court suggested, but did not require, that district courts, when sentencing youth offenders, make express the finding prescribed by the Act.

We believe, however, that the language of the Act and the remedial policies underlying it require the district court, before sentencing a youthful offender as an adult, to determine expressly that the person convicted will not benefit from treatment provided by the Youth Corrections Act and to state its reasons for this determination. E.g. United States v. Kaylor (Appeal of Hopkins), 491 F.2d 1133 (2d Cir. 1974) (en banc); United States v. Riley,157 U.S.App.D.C. 27, 481 F.2d 1127 (1973); United States v. Coefield,supra. Like other courts that have required an express determination, we are persuaded that it is necessary to insure that the sentencing court, on the basis of evidence presented at trial, and information derived from a presentence report or from a report made after study pursuant to Section 5010(e) of the Act, has deliberately considered whether a youth offender may benefit from the treatment provided for in the Act, and has not abused its discretion in applying the standards imposed by the Act in its disposition. Without an express determination that a youth offender cannot derive benefit from the Act and a statement of reasons supporting that determination, a reviewing court cannot exercise properly its responsibility of determining whether the sentencing court has abused the discretion conferred upon it by the Act. It is evident that 'when an appellate court is asked to determine the propriety of a denial of Youth Act treatment to an apparently eligible offender, and the record contains only a comment on the defendant's record and a reference to a probation officer's 'recommendations' instead of an explicit supporting rationale for the sentencing judge's action, meaningful review is impossible.' United States v. Forrest, 157 U.S.App.D.C. 188, 191, 482 F.2d 777, 780 (1973).

The facts of this case demonstrate vividly the necessity for the procedure we have stated. The record contains no reference whatsoever to the Youth Corrections Act either at the time of appellant's sentencing or at the time that his motion for reduction of sentence was denied. All that the record contains is a description of the unlawful conduct engaged in by appellant and a recommendation by a magistrate two and one-half years after sentencing, that appellant will not derive benefit from the treatment provided by the Youth Corrections Act. Of greater importance is the virtual absence of any facts that would suggest that appellant would not benefit from sentencing under the Act. On the contrary, the evidence, including appellant's family circumstances, his prior good record, and his successful educational pursuits until the time of his offense, suggests that appellant may be the kind of individual whom Congress intended to assist in rehabilitation when it passed the Youth Corrections Act. We do not, however, consider the merits of the decision to impose an adult sentence at this time.

The judgment of the district court is reversed and the case is remanded with instructions to vacate appellant's sentence and for further proceedings consistent with this opinion.⁵