Roy Soto Puente, Plaintiff-appellant, v. United States of America, Defendant-appellee, 676 F.2d 141 (5th Cir. 1973)

Petitioner Roy Soto Puente appeals the district court's denial of a writ of error coram nobis attacking his 1968 sentence. For the reasons stated below, we reverse and remand for resentencing.

Puente pled guilty on September 18, 1968 to a charge of unlawful purchase of narcotics. On October 4 he was sentenced to five years confinement; he was paroled on June 29, 1970 and completed parole on September 23, 1973. Puente was twenty years old at the time of sentencing and eligible for special treatment under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. He claims that the sentencing judge, District Judge Ben C. Connally, did not make the required finding that Puente would derive no benefit from treatment under the Youth Corrections Act instead of serving a normal prison sentence. See 18 U.S.C. § 5010(d). Puente argues that the trial judge's failure to consider Youth Corrections Act treatment continues to handicap him seriously in employment opportunities and in a pending state criminal case. This is because a person committed under the Act is entitled to automatic expungement of his conviction once unconditionally discharged. 18 U.S.C. § 5021.

Six years after Puente's conviction, the Supreme Court decided in Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 85 (1974), that a sentencing judge must make an explicit finding of "no benefit" before a youth offender eligible for treatment under the Youth Corrections Act may be sentenced as an adult. The purpose of the "no benefit" finding is to make sure that the sentencing judge is aware of the Act and the fact that the youth offender is eligible for treatment under it. The judge need not give his reasons for rejecting this remedial avenue; if he has made clear by an explicit "no benefit" finding that the Act has been considered, no appellate review is warranted. Id. at 443, 94 S. Ct. at 3052.

In the present case both Puente and the Government agree that no explicit "no benefit" finding was made at the sentencing hearing on October 4, 1968. Judge Connally, the sentencing judge, is now deceased. The district court in the present case examined the case file in Puente's conviction and discovered a handwritten letter from Puente dated October 19, 1968, addressed to Judge Connally. In the letter Puente specifically asked the Judge to modify the October 4 sentence and consider treatment under the Youth Corrections Act. The letter added:

My sentence of five years on the taxation of heroin would not clear my record. The Youth Correctional Act is supposedly meant for that purpose. The clearance of my record is of great importance in obtaining future employment ... I only hope that you and your staff will consider the modifying of my sentence ...

The file also contained a copy of a letter dated November 25, 1968, addressed to petitioner at the federal penitentiary in El Reno, Oklahoma. This letter was written by Judge Connally's law clerk and read as follows:

Dear Sir:

Judge Connally has asked me to acknowledge your recent letter.

In reply I am asked to say that all the circumstances surrounding your case were given careful consideration before sentence was imposed, and the Court is not inclined to modify same.

The circuits are split as to whether Dorszynski's requirement of an explicit "no benefit" finding is retroactive, see Lawary v. United States, 599 F.2d 218, 225 (7th Cir. 1979); this circuit's position is that Dorszynski is retroactive. Walls v. United States, 544 F.2d 236 (5th Cir. 1976); Robinson v. United States, 536 F.2d 1109 (5th Cir. 1976); Hoyt v. United States, 502 F.2d 562 (5th Cir. 1974). Robinson makes clear however, that a post-facto determination of "no benefit" by the sentencing judge when he reviews the sentence in a petition for habeas relief is sufficient for the purposes of Dorszynski. 536 F.2d at 1110.

The district court recognized that Dorszynski applied retroactively to this case. Nevertheless, the district court held that an explicit "no benefit" finding was not necessary because the law clerk's letter made clear that Judge Connally had considered the treatment provisions of the Act and had rejected them in the circumstances of Puente's case. Thus the court held that the spirit of Dorszynski had been complied with, and accordingly denied coram nobis relief on that ground.

In response to the district court's argument we need only recite the language of the Supreme Court itself in Dorszynski :

The question whether the finding of "no benefit" must be explicit or whether it may be implicit in the record of a particular case is answered by the manifest desire of Congress to assure that treatment under the Act be considered by the court as one option whenever the youth offender is eligible for it. If the finding may be implied from the record, appellate courts must go on to determine what constitutes a sufficient showing of the requisite implication. To hold that a "no benefit" finding is implicit each time a sentence under the Act is not chosen would render § 5010(d) nugatory; to hold that something more is necessary to support the inference that must be found in the record would create an ad hoc rule. Appellate courts should not be subject to the burden of case-by-case examination of the record to make sure that the sentencing judge considered the treatment option made available by the Act. Literal compliance with the Act can be satisfied by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.

This case provides an example of the problems arising when the required finding is left to implication. Counsel's references to the Act followed by the District Court's sentence indeed afford support for the argument that, by implication, the options of the Act were considered and rejected. However at the post-conviction hearing the District Court found from the record of the sentencing hearing the implication that the Act was "not applicable." It is thus unclear whether this meant the court believed petitioner to be legally ineligible for treatment under the Act-which would be error-or whether, realizing he was eligible, nevertheless deliberately opted to sentence him as an adult. An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised.

418 U.S. at 443-444, 94 S. Ct. at 3052-3053. The law clerk's letter does not tell us whether Judge Connally felt no benefit would be derived from treatment or believed that Puente was not eligible. It is consistent with both possibilities. Thus, while we can sympathize with the district court's construction of Dorszynski we cannot agree with it for the reasons stated in the Supreme Court's opinion. Deciphering the nuances of phrasing in the law clerk's letter to Puente (a letter not even written by the judge himself) is exactly the sort of enterprise we are not supposed to be engaged in.

This circuit, for better or worse, has decided that Dorszynski shall apply retroactively, whether the issue is raised on direct appeal of the conviction or on a petition for post-conviction collateral relief. Compare Robinson and Hoyt, supra, with Lawary, supra (rejecting retroactivity in all cases), and United States v. Brackett, 567 F.2d 501 (D.C. Cir. 1977) (en banc), cert. denied, 435 U.S. 968, 98 S. Ct. 1605, 56 L. Ed. 2d 58 (1978) (applying Dorszynski retroactively in cases of pending direct appeals but not in cases of collateral attack). We may question the wisdom of resentencing for a conviction thirteen years past,¹  but we are bound by the decisions of prior panels. The sentencing judge is now dead and thus cannot be consulted for a Robinson -style post-hoc finding of no benefit based on his recollection of events. But the fortuity of the sentencing judge's being alive or dead cannot affect the petitioner's substantive rights in this case. If a remand for resentencing is required in one case it is required in the other. Fortunately, the Supreme Court in Dorszynski has given the district courts some guidance in cases where the original sentence has been fully served:

Although by now petitioner may have fully served his sentence, including probation, he still suffers the disabilities accompanying a criminal misdemeanor conviction under 21 U.S.C. § 844(a). While the provision under which he was sentenced to probation, 18 U.S.C. § 3651, does not provide for relief from these disabilities, the Act does so in 18 U.S.C. § 5021, by its provision for setting aside the conviction of a youth offender:

"(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."

Despite the expiration of petitioner's sentence, then, he may still receive the benefit of 18 U.S.C. § 5021 if he is resentenced under the Act. To be eligible to have his conviction set aside under the Act, petitioner would have to be committed under § 5010(b) or (c), or placed on probation under § 5010(a), and achieve the early discharge required by § 5021(a) or (b). While this might require the imposition of a longer sentence than he originally received, petitioner represents through counsel that he would voluntarily seek resentencing which would place him back on probation. Tr. of Oral Arg. 8, 16-18. The District Court would then be able, as a matter of discretion, to provide the requisite early unconditional discharge. 18 U.S.C. § 5021(b).

418 U.S. at 429-430 n.6, 94 S. Ct. at 3046 n.6. The district court is, of course, free to make a "no benefit" finding as well. See Robinson, supra, at 1110. In reaching its decision, the district court need not restrict itself to consideration of the facts at the time of the original sentencing. As the Ninth Circuit has pointed out in a virtually identical situation:

The district court erroneously assumed that resentencing must be based solely upon the facts as they existed in 1963 to 1965, whereas it is a common practice in resentencing to take into consideration events and conduct occurring subsequent to the original sentence. The required pre-sentence report must be up-to-date. United States v. Carmichael, 152 U.S.App.D.C. 197, 469 F.2d 937, 939 (1972). And, a harsher sentence on resentencing must be justified by reference to conduct of the defendant occurring subsequent to the original sentencing. North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2089, 23 L. Ed. 2d 656 (1969). Upon resentencing, then, the sentencing court will be free to take into account the evidence marshalled by petitioner in support of his "rehabilitation", and to give it such weight as the court deems just.

Rewak v. United States, 512 F.2d 1184, 1186 (9th Cir. 1975). Puente's subsequent criminal activity is, therefore, a factor which may have some relevance. The district court may also wish to consider whether the expungement sought by petitioner will aid in his rehabilitation according to the purposes of the Act. If the court decides against resentencing under the Act, we stress that it must make a clear and explicit statement that it has considered the Act's provisions and petitioner's eligibility for treatment thereunder, for that is what Dorszynski requires. If the court has made such a clear and explicit statement, no further appellate review is warranted. Dorszynski, supra at 443. Accordingly, the judgment of the district court is reversed. We order that the writ of error coram nobis be granted pursuant to 28 U.S.C. § 1651(a),²  and that the petitioner be resentenced.³ 

REVERSED and REMANDED.