This is an appeal from an order of the United States District Court for the Southern District of California, entered December 11, 1964, denying appellant’s Motion to Vacate and Set Aside his sentence, pursuant to 28 U.S.C.A. § 2255 (1948).
An indictment was returned by the Grand Jury for the Southern District of California on April 11, 1960 charging appellant with a violation of the Dyer Act, 18 U.S.C.A. § 2312 (1948). On April 18, 1960, appellant, represented by counsel, was arraigned and entered a plea of guilty before the Honorable Myron D. Crocker. On May 16, 1960 appellant was sentenced by Judge Crocker to the custody of the Attorney General for a period of five years, with an accompanying order that a study be made of him, pursuant to 18 U.S.C.A. § 4208 (1958), Fixing Eligibility for Parole. On August 15, 1960, the appellant, with counsel, again appeared before Judge Crocker, who, on the basis of the results of the study, modified the sentence previously imposed on appellant so as to commit him to the custody of the Attorney General for treatment and supervision pursuant to the Youth Corrections Act, 18 U.S.C.A. § 5010(b) (1950).
An examination of the reporter’s transcript of this sentencing proceeding reveals that the Court informеd the appellant of the nature, scope, and purpose of the Youth Corrections Act. However, at least as far as the record is concerned, the Court failed to advise appellant that the mаximum sentence under the Youth Corrections Act was one year longer than that possible under the Dyer Act, i. e. six years, rather than five years. 1 It appears the Court actually misinformed appellant by twice stating to him that the maximum sentence was four years:
“So that is what I have in mind for you, is an indeterminate type of sentence, in which as soon as you show the authorities you can accept your responsibilities they can release you, whether it be a day, or a month, or a maximum of four years.” (Emphasis added). (S. C. T. 6)
After the imposition of sentence, the Court again admonished the appellant:
“So if you want to grow up and assume your responsibilities you will be out in a short while. Otherwise you will be there as long as four years.” (Emphasis added) (S. C. T. 8)
Appellant was paroled on November 29, 1962, pursuant to 18 U.S.C.A. § 5017(c), having served approximately two and one-quarter years. Immediately thereafter he was taken into custody by the State of New York to answer charges there pending against him. A sentencе of imprisonment for four months resulted, execution of which was suspended. On October 3,1963 appellant was convicted of violation of 18 U.S.C.A. § 2312, Dyer Act), in the United States District Court for the Western District of Texas and was sentenced tо imprisonment for a term of three years.
On March 11,1965, a hearing was held to determine whether appellant had violated the conditions of his parole by virtue of his latest conviction. On April 12, 1965, the Board of Parole revoked appellant’s parole. Appellant is presently *942 confined at the Federal Correctional Institution, Danbury, Connecticut, serving the three year sentence imposed as the result of his 1963 conviction in the Western District of Texas, as well as the remainder of his original sentence under the Youth Corrections Act.
The question presented by this appeal is whether the petitioner has a remedy under 28 U.S.C.A. § 2255 by virtue of the fact the trial judge may nоt have informed him that under the Youth Corrections Act the statute subjected the defendant to a possible maximum sentence of six years confinement.
This issue has been decided by both the Fourth and Fifth Circuits. The Fourth Circuit, in Pilkington v. United States оf America,
The Fifth Circuit, in Marvel v. United States of America,
We have previously approved of the Pilkington decision. In Young Hee Choy v. United States,
“[W]e believe that where a defendant pleads guilty to an offense where the maximum penalty is less than six years аnd is eligible for sentencing under the Federal Youth Corrections Act, he should be advised that he could be sentenced under the Federal Youth Corrections Act and that he could not be unconditionally released prior to six years. Pilkington v. United States,315 F.2d 204 (4th Cir. 1963).”
On a second appeal by the same appellant, Young Hee Choy v. United States,
This was not done in the instant case. Therefore, we specifically now hold that a defendant who pleads guilty to an offense where the maximum penalty is less than six years and is eligible for sentencing under the Federal Youth Corrections Act, should be advised that he could be sentenced under the Federal Youth Corrections Act and that he could be “released conditionally under supervision on or before the expiration of four years from the date of his conviction and * * * discharged unconditionally on or before six years from the date of his conviction.” 18 U.S.C.A. § 5017(c) (1950).
Appellant is bеing deprived of his liberty for a longer period than he was informed at the time his plea of guilty was entered. Rule 11, Federal Rules of Criminal Procedure, demands that the Court not accept a plea of guilty “without first determining that thе plea is made voluntarily with understanding of the nature of the charge.” This provision is merely an enunciation of the admonition by the United States Supreme Court in Kercheval v. United States of America,
Appellant has also allеged in his petition: (a) that “he was placed in double jeopardy when the sentencing Court vacated his sentence under 18 U.S.C. Section 4208(b) and resentenced him under the provisions of 18 U.S.C. Section 5010(b)”; (b) that “the government lost jurisdiction whеn it paroled him from service of sentence to the authorities of the State of New York.”
After examination of each of these contentions we conclude and hold that they are without merit. We are, however, of the view that appellant is entitled to some relief under 28 U.S.C.A. § 2255 (1948) even though appellant has failed to specifically designate precisely what relief he is seeking. 28 U.S.C.A. § 2255 spells out the following alternatives: “ * * * [T]he court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” We have befоre us for our consideration only the transcript of the proceedings below that occurred on August 15, 1960 when appellant appeared before Judge Crocker for modification of his original sentence. Priоr to appellant’s entry of his plea of guilty, the provisions of the Youth Corrections Act might have been explained to him by either his attorney or by Judge Crocker or by someone else. We have no way of determining this fact from the record as it now exists. Accordingly, this case is reversed for the aforementioned reasons and remanded to the District Court for a hearing to determine whether or not appellant was aware of the rаnge of possible punishments under the Youth Corrections Act at the time of entering his plea so as to arrive at a determination of the voluntariness of his plea of guilty. If the Court finds that appellant fully understood the consеquences of his plea of guilty, then his sentence should stand. If the Court finds that appellant was not cognizant of the full range of sentences possible under the Youth Corrections Act, then he should be afforded an opportunity to withdraw his plea of guilty, pursuant to Rule 32(d) of the Federal Rules of Criminal Procedure or be afforded such other relief as the Court below may deem proper under the provisions of 28 U.S.C.A. § 2255 (1948).
As was expressed by the Fourth Circuit in Pilkington v. Unitеd States,
Reversed and remanded for further proceedings in accordance with this opinion.
Supplemental Order
In view of the decision of the Court in Heiden v. United States, No. 19,536, November 2, 1965, the mandate herein is modified to provide as follows: The order appealed from is reversed and the cause is remanded with directions that unless it appears from the transcript of the hearings on arraignment and sentencing that Rule 11, Fed.R.Crim.P., was complied with, the judgment of conviction and sentence shall be vacated, and defendant shall be permitted to withdraw his plea of guilty and plead anew to the indictment returned April 11, 1960.
Notes
. Title 18 U.S.C.A. § 2312 TRANSPORTATION OF STOLEN VEHICLES
Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,-000 or imprisoned not more than five years, or both. June 25, 1948, e. 645, 62 Stat. 806.
Title 18 U.S.C.A. § 5017(c) RELEASE OF YOUTH OFFENDERS
(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.