United States of America v. Alexander E. Lewis, Jr., Appellant, 447 F.2d 1262 (D.C. Cir. 1971)

D.C.Code § 22-1801(b) (Supp. IV, 1971) provides in pertinent part:

Burglary in the second degree shall be punished by imprisonment for not less than two years nor more than fifteen years. (81 Stat. 736)

The Youth Corrections Act is applicable in the District of Columbia. 18 U.S.C. § 5024

Appellant was originally released on bond, then rearrested on other charges. Following the dismissal of the other charges he was again released on bond on March 4, 1970, but this bond was revoked on May 11, 1970

The Youth Corrections Act applies generally to sentencing of "youth offenders" unless specifically excluded. Thus, in the District of Columbia Court Reform and Criminal Procedure Act of 1970 (P.L. 91-358, July 29, 1970, 84 Stat. 473), Congress provided by specified language that the Youth Corrections Act would not be applicable to a youth offender convicted of a second offense which constituted a "crime of violence while armed" and thus left the Youth Corrections Act applicable to first offenses even though the definition of a "crime of violence while armed" included murder. D.C.Code §§ 22-3201, 22-3202(d) (1).

D.C.Code § 22-3202 (1967); 18 U.S.C. § 5010(b); United States v. Fort, 143 U.S.App.D.C. 255, 272, 443 F.2d 670, 687 (1970), cert. denied, 403 U.S. 932, 91 S. Ct. 2255, 29 L. Ed. 2d 710 (1971)

Bostick v. United States, 409 F.2d 5 (5th Cir.), cert. denied, Lainhart v. United States, 396 U.S. 890, 90 S. Ct. 180, 24 L. Ed. 2d 164 (1969); Lee v. United States, 400 F.2d 185, 189 (9th Cir. 1968)

Under the claim of "harmonizing" the two statutes, the dissent would reverse the order in which their language indicates they were intended to operate and then do violence to the Youth Corrections Act by excluding from its coverage an entire group of youth offenders who are the very persons most in need of its benefits, i. e., those convicted of misdemeanors who by the nature of the offense with which they were charged, or their prior conduct, were required to be incarcerated a substantial period of time prior to trial. The dissent argues that such result would be rare. That may be, but that is no reason to allow it at all. These are the worst offenders and we should not resort to a construction of the statute contrary to its terms to achieve a result that does violence to its purpose. The result sought by the dissent would also prevent the youth offender from having his conviction set aside under 18 U.S.C. § 5021 which provides:

(a) Upon the unconditional discharge by the division of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the division shall issue to the youth offender a certificate to that effect.

(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect.

While a youth offender at the time of his sentence may value his liberty more than the possibility of a clean record, the latter, if achieved, may be of greater permanent value to him. The result sought by the dissent would also discriminate against youth offenders who serve their time after sentence.

Since it is not raised by the instant record and was not argued on this appeal, we do not decide whether 18 U.S.C. § 3568 requires the Attorney General to credit pre-sentence jail time of a youth offender sentenced under the Youth Corrections Act against the four and six year limits prescribed by 18 U.S.C. § 5017(c):

A youth offender committed under section 5010(b) of this chapter shall be released conditionally under supervision on or before the expiration of four years from the date of his conviction and shall be discharged unconditionally on or before six years from the date of his conviction.

Cf. Viggiano v. United States, 274 F. Supp. 985 (S.D.N.Y. 1967).

FAHY, Senior Circuit Judge (dissenting):

The problem is one of construing two statutes, neither enacted in any obvious contemplation of the other but each bearing upon the other when both are involved in the factual situation presented. In such circumstances we should seek a solution which avoids violence to the terms of either but which brings both into harmony, when to construe either in isolation from the other would thwart the intention of Congress.

Appellant, a youth offender within the meaning of the Youth Corrections Act, was convicted of a misdemeanor which carried a possible sentence of fine not to exceed $100 or imprisonment for not more than six months, or both. He was sentenced under 18 U.S.C. § 5010(b) of the Youth Corrections Act. When sentenced he had been incarcerated for more than six months due to the charges against him which resulted in conviction of the misdemeanor. He now contends that since he was entitled to credit for the full time spent in jail prior to sentencing, which was a greater period than the statutory maximum for which he could be sentenced for the offense of which he was convicted under D.C. Code § 22-3102, he could not be sentenced to further confinement, though under the Youth Corrections Act.1

Under 18 U.S.C. § 3568, quoted in the majority opinion, appellant would be entitled to credit for the period of his pre-sentence confinement on a sentence under D.C.Code § 22-3102. See also Stapf v. United States, 125 U.S.App.D.C. 100, 367 F.2d 326 (1966); Cephus v. United States, 128 U.S.App.D.C. 366, 389 F.2d 317 (1967). At the time of sentencing appellant accordingly had served all imprisonment to which he could be confined under the misdemeanor statute. The Government contends, however, that since formal sentencing had not yet taken place, the Youth Corrections Act was available to the judge, notwithstanding appellant had been incarcerated for the maximum period for which he could be sentenced for the misdemeanor.

The contention of the Government runs into a provision of Section 5010(b) of the Youth Corrections Act. That section provides that the sentence under the Act is available to the judge "in lieu of the penalty of imprisonment otherwise provided by law." The imprisonment otherwise provided by law having been fully served, in all substance as though it had been formally imposed, to impose a further sentence under the Youth Corrections Act simply is not in lieu of the misdemeanor sentence but is in addition to it.2 See also Carter v. United States, 113 U.S.App.D.C. 123, 125, 306 F.2d 283, 285 (1962); Cunningham v. United States, 256 F.2d 467, 472 (5th Cir. 1958).

My position analogizes the six months incarceration to a sentence. I think giving this effect to the incarceration is required when the maximum sentence which could be imposed for the offense has actually been served. In this manner the two statutes are harmonized. It accords on the one hand with the intent expressed by the "in lieu" provision of Section 5010(b), and on the other it does no violence to the ordinary sentencing procedure. It also prefers substance to form, for if appellant were sentenced in the usual manner for the misdemeanor he would have been entitled simultaneously to release by the credit due.3 To treat the matter, therefore, as though he had served his misdemeanor sentence, with the consequence that a sentence under the Youth Corrections Act would not be in lieu of it, gives effect to the reality of the situation and brings into harmony the two statutes relating to sentences.4

While the consequence of my position would be in some situations to limit the application of the Youth Corrections Act in misdemeanor cases, it is probable this result would be rare. In these relatively minor cases the accused ordinarily is not incarcerated before trial, at least for the period of the maximum sentence available; rather he is usually released pending trial or actually tried before serving the full time.5

That a sentence under the Youth Corrections Act results in confinement and an "enlarged duration of loss of liberty" is not disputed See Harvin v. United States, 144 U.S.App.D.C. ___, ___, 445 F.2d 675, 683 (1971).

The possibility that a fine of $100 could be imposed under D.C.Code § 22-3102 does not I think leave the situation open for an "in lieu" sentence under the Youth Corrections Act. The Government does not so suggest

In addition, that appellant's initial incarceration was for lack of bail on felony charges does not mean, and the Government does not suggest, that he was not entitled to credit for his pre-sentence confinement when he was convicted of the lesser-included offense of unlawful entry. The confinement did not arise out of charges in another case.

In reference to footnote 7,supra, of the court's opinion, I do not understand that youth offenders who for some reason do not obtain release on bail are those most in need of the benefits of the Youth Corrections Act, though this factor, as are the other questionable factors referred to in the same footnote, seem to be quite irrelevant to the problem of statutory construction which brings the two statutes into harmony.

Though I dispose of the matter by interpretation of the relevant statutes, I point out that the disposition of the case by the majority raises a question of equal protection of the laws Cf. Stapf v. United States, supra.

I do not think it is feasible to give credit for appellant's pre-sentence custody on the sentence under the Youth Corrections Act. As Judge Weinfeld stated in Viggiano v. United States, 274 F. Supp. 985 (S.D.N.Y. 1967), given the corrective and rehabilitative purposes of commitment under the Act, confinement prior to sentencing is of no significance on the issue whether the youth has responded to treatment and is ready to be returned to society