United States of America, Plaintiff-appellee, v. Sergio Bojorquez-villagrana, Defendant-appellant, 724 F.2d 842 (9th Cir. 1984)

An alien who was deported following a 1971 conviction for a controlled substance offense was rearrested in 1982 as a deported alien and now appeals the refusal of the district court to grant a writ of error coram nobis¹  to reopen his 1971 case and resentence him under 18 U.S.C. §§ 5005 et seq. (the Federal Youth Corrections Act). We affirm.

The petitioner relies upon Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974), which makes it unlawful to impose an adult sentence upon a youth offender unless the sentencing judge first makes a finding, on the record, pursuant to 18 U.S.C. § 5010(d) that the offender will derive no benefit from the special provisions of Secs. 5010(b) and (c). Dorszynski applies to all sentences thereafter imposed upon persons defined in 18 U.S.C. § 5006(d) as youth offenders, but until today this court has had no occasion to decide whether Dorszynski must be applied retrospectively to sentences imposed before Dorszynski and not under challenge by appeal or by collateral attack²  on Dorszynski grounds when Dorszynski was decided.

The Seventh Circuit, examining this question, decided that Dorszynski's requirement of an explicit finding on the record should not be applied retrospectively to sentences imposed prior to the date of the Dorszynski decision. Lawary v. United States, 599 F.2d 218, 225 (7th Cir. 1979).³  We agree.

Counsel have cited no authority for the proposition that a sentence, lawful when imposed, and fully served, as a penalty for an unchallenged conviction, can be attacked collaterally and expunged because the sentencing judge failed to anticipate Dorszynski.⁴  Unlike Rewak v. United States, 512 F.2d 1184 (9th Cir. 1975), and United States v. Jarratt, 471 F.2d 226 (9th Cir. 1972), there is no indication here that a finding of "no benefit" under Sec. 5010(d) cannot be implied from the record as a whole. Lack of reference to the Act in the presentence report provided to the court does not indicate that the court itself failed to consider sentencing under the Act. Although the court chose to sentence Bojorquez as an adult, the court's awareness of its options for sentencing under the Act may be inferred from reference to provisions of the Act on the criminal minutes form entered on November 6, 1972. Because Bojorquez's initial sentencing was proper, we need not reach the question of manifest injustice that could cause a district court to issue a writ of error coram nobis for resentencing. Rewak, 512 F.2d at 1186.

Moreover, even if we were to explore the equities, this is not the case in which to order resentencing eleven years after the case was closed. The Federal Youth Corrections Act is designed to provide to youth offenders, during their youth, "corrective and preventive guidance and training designed to protect the public by correcting [their] antisocial tendencies." 18 U.S.C. § 5006(f). Bojorquez is well past the age at which the Act's rehabilitative intent is directed, and his present effort to obtain permanent legal status in this country has no relation to the Act's purpose.

Affirmed.