*2 FEINBERG, Before MOORE and Cir the Federal Youth Corrections Judges, cuit PALMIERI, and District seq., U.S.C. 5005 et and could § have Judge.* pursuant provi- been sentenced to its sions. While the district court acted PER CURIAM: scope within discretionary the of its powers, rejecting appellant, U.S.C. offender, a first was § plea years “young her to be imprisonment sentenced as a sentenced to four offender,” pursuant adult disapprove we constrained to 4208(a)(2) to 18 are U.S.C. and years special parole. three manner which this was done and to remand the case for re- ground appel- It is common judge. sentence before another young lady family lant is a with a stable background. age She at was 25 of During colloquy the rather extended plea the time of the and sentence and upon sentencing proceed- attendant her previous had had no contacts with law ings, the district court made much of enforcement authorities. An honor stu- appellant fact that the came from a college graduate, appel- dent and a privileged background than from rather product intact, lant was the finan- an ghetto” “the and not “usual was cially engaged secure home. to She was dumb kid.” The court referred her during be married and has been married average, as one “far above so that proceedings. the course of these She doing.” knew what she she was Under- acknowledgment made a her of- full standably, appellant has been left cooperated fense and with the Govern- argued forcefully impression, with ment. There was no evidence counsel, by her her intelli- to us that any organized was connected with crimi- background gence privileged were activity. February nal On against pejorative fac- counted her as rights constitutional to indictment disentitling tors her to treatment plea trial were waived and a The court’s the Youth Act.1 Corrections was entered to a one information. count coupled explication, re- with its appears have been of what fusal Concededly, appellant was joint and the request of counsel defense eligible age aas virtue of her court Attorney that offender,” United States “young adult 18 U.S.C. § that make provided under the treatment dealing youngster who comes with a like Of District Court the United States up ghetto, grows know sitting by York, who out of Southern District of right except nothing commit one is designation. that satisfy whatever after another crime may problems time. supported by Judge his at be Tra 1. is This conclusion caliber, age youngster and this at “A this : via's at the time sentence comments education, background type ordinary of this pretty individ- not so-called “[Sllie’s ignorance. plead cannot much nature . ual . . doesn’t know who type dealing the usual with not here “I am such she from of her act or that comes us where family— individual who comes circumstances that terrible prob- personal they lady young have all the —these was she involved. This became that, family problems all entirely, sphere lems of influence a different they really things have an differently. where up brought to col- been She’s they all argument unaware college. were that lege. graduated So from She’s point law. argue ramifications of the these from the that she cannot use the I could ignorant we don’t have —if “Here was so-called view that she know what didn’t a dumb kid who going word of befud- she was on or that what was person doing. have a picture were We or he she or didn’t into a was drawn dled or my judgment above far going who average, usual on. Not was know what she was what knew that she dragged so in. dumb kid who is certainly nature of doing. say young sure, knew you I She she is “So when — doing was fool- in that she young not But what she I wish know, was, you ing with stuff young we around what we know don’t dynamite.” stage bit of doing a little It’s not .... are at that Judgment instructions reversed with from treatment derive benefit Act,
would not
proceed to
to vacate the sentence and
us to conclude
leads
with
employed
in a manner consonant
and mechani
resentence
a fixed
the court
opinion.
rather
this
approach in
cal
the variable
than a careful
to the
relevant
Judge (dissenting):
MOORE, Circuit
Williams
individual basis.
*3
characterizing
Before
the
585,
576,
Oklahoma,
79 S.Ct.
358 U.S.
procedure adopted
the
(1959);
v.
421,
Williams
L.Ed.2d 516
3
judge
as “a fixed
sentence
241, 247-250, 69 S.
York, 337
U.S.
* *
and mechanical
(1949). This
1529,
L.Ed. 1760
93
Ct.
the
rather than a
careful
the
requires
invalidate
us to
situation
sen-
variable
relevant to the
Brown, 470 F.
States v.
sentence. United
tence
hence,
an individual basis”
(2d
1972); United
285,
Cir.
2d
288-289
states,
majority
as the
a situation
360,
Baker,
F.2d
362-364
States v.
487
presented
“requires
ma-
which
us [the
J.,
(Lumbard
1974)
dissent
Cir.
sentence,”
jority]
to invalidate the
F.
Woolsey
States,
ing;
478
v. United
may
tran-
not be amiss to examine the
1973).
(8th
We
Cir.
2d
143-145
script to ascertain what the “situation”
Kaylor,
v.
States
are
that United
aware
really was.
banc)
(en
1974)
(2d Cir.
whole, inappropriate because were delivering else; it to someone only meaning susceptible are of the she knew the maximum sentence could persons con a class of can claim years plus parole; be fifteen a fine and provisions of the sideration under the knowing consequences and and that having Act. rights by been advised of counsel, plead Court and guilty. she desired direct Under these circumstances we fixed for March Sentence was reassigned that the case be for sentence 22nd; judge’s name judge judge’s another “both (then unknown) “come out of justice,” appearance sake and drum.” States, F.2d Mawson v. United 463 (1st (per curiam); 1972) 31 Cir. 25, 1974, On March defendant came Brown, supra.4 States Judge The Travia for sentence. “ 5006(e): appears ‘Youth § U.S.C. offender’ the term “convic Act since it twenty-two age person means 4209, supra note § tion” 18 U.S.C. years at time of conviction.” plea mean the date of the would case and the context of this 3. 18 “. . . a defendant U.S.C. 4209: twenty-second birthday qualify considera who has attained his for such would therefore twenty-sixth Kleinzahler, but lias birth- not attained liis F. tion. United States ” day . at the time of . . conviction. cf. (E.D.N.Y.1969); Supp. 311, 313-314 Standley v. United judge may 4. The wish to consider on remand resentencing (9th the Youth Corrections Cir. guilty plea had made to her counsel Court available and her statement before presentence report judge rele- just various “I himself: igno- say pleading letters directed want vant and had counsel that I wasn’t ghetto. somebody Al- with her. read and discuss them rance as from the leged knowledge.” nothing were discussed had inconsistencies But I There is quantity marijuana such as the record to indicate that sen- tencing apartment. judge “intelligence found cocaine in defendant’s deemed background” privileged “pejorative to be Court, mindful that defendant The disentitling factors her to treatment un- age day,, the next would be the Youth der Act.” Corrections possibility im- was aware “the every majority’s holding imperil would pursuant position preceded by judge’s the trial rather than Youth Corrections Act good comment, “You had a education. in this adult sentence which she faces Or, You should have known better.” case.” majority since “are constrained argued vigorously Defendant’s counsel *4 disapprove of manner which this in real class his client had “a first that sentencing] done,” does this was [the “college background”; she was a that sentencing judge mean that a ex- cannot graduate”; good “a had work coriate a vendor without fear narcotics family” record, performed but excellent having his sentence invalidated ? stupid thing act, and criminal a —a given urged “coupled that the bene- its defendant be These comments with sentencing judge’s] and Act refusal fit of Youth Corrections [the * * * probation. make a [to] not that would derive benefit Court, sentencing, in noted The treatment under the Act” led from conformity practice (in in the with majority “to the court em- conclude that discussing in a cases Eastern District of presentencing panel ployed fixed a and mechanical receiving care- in sentence rather than a sentencing of the other recommendations of the variable ful judges panel) he had conferred on the individ- relevant to the sentence an judges to their recommen- with other as ual basis.” respect with to dations pre- part: in have read this also said “I Although not available at the time of report maybe al- five times sentence ready. sentencing argument or of this every letter that was I read sent. appeal, thought question I had that the ** by people to me a number sentencing judge’s discretion doing a soul- little The Court “after apply the Youth Corrections had Act ” * * * searching own, of [his] Supreme put by been rest Court having considered all facts States, (1974) Dorszynski in v. United under not to sentence him concluded - U.S.-, 41 L.Ed.2d under Act but Youth Corrections concurring The four dif Justices provisions law. The Court adult of the only fered from the five as to the form only to show defendant’s education used statement, namely, “no of the benefit” doing” “she knew what she was “merely conclusory whether state he not find “that she could explicit ment” or a more statement was by way any in this YCA.” would benefit required. us, As to the issue before i. then defendant The Court sentenced right sentencing judge e., of the 18 U.S.C. four against sentencing for or decide 4208(a)(2). disagreement. the Writing there was Court, turn, pointed four, defend- The in Mr. Justice Mar background. hence, clearly intend education and shall said: “But the Act ant’s — ability the nature ed that the' ultimate decision her understand knowledge judge.” rein- crime. remain with the trial For the Such five, time her admissions the Chief wrote: “The sole forced Justice validity ing issue in this judge’s case is the past of the treatment of selective imposed by the District Court.” Similarly, service offenders. sentencing discretion, As to Baker, supra, after re- States this court exam- legislative history view of the ined the records the district court Act, the attempt Chief Justice said: “The intent to uncover a mechanical atti- Congress long-es- was in accord part with tude toward on authority tablished judge. the United States the district 487 F.2d at n.l. vesting function exclu- point process At no in the sively in the trial court. in this case did the that it Court declare “If there is one rule the federal was his custom habit to sentence all practice firmly drug years’ criminal which is es offenders to four incarcera- tablished, appellate years’ open parole court is tion with and three special Likewise, has no control over probation. a sentence which the record within the survey limits allowed a stat discloses no the district States, ute.” judge’s past Gurera United F. this sentences from which (CA8 2d court that he sentences deduce drug way. offenders in a mechanical supra; See Gore v. United Blockburger Burke, supra; Townsend v. District Court determined * * * States, supra. v. United defendant should sentenced as an be shown, As our the exclusive review has adult because she had been well educated sentencing power judges of district given advantages, many and had been acknowledged, Congress’ intention mit- criminal act could not be whose *5 clearly power indicat affirm igated ignorance by or a claim ed.” crushing poverty effects which judgment. In have numbed her moral judge of mechanical sen- A although pre- addition, no defendant had tencing displays “fixed sen- he when police record, in evidence category vious there is tencing policy based on the presentence report en- that she had individualized crime rather than on the involving gaged in hard transactions record of defendant.” United States drugs participated in before and had Baker, Cir. 487 F.2d drug Thus, approach distribution. demon- can be an attitude Such anything but ways. First, of the District Court was strated in one of two mechanical. proven mouth of the' out of the can be sentencing judge, state, e., he can i. presented completely The facts here “routinely” sentencing, “ha- that he charge refute, my opinion, bitually” out a certain sentence metes “employed me- a fixed and the Court given instance, crime. For for a imposing chanical sentence.” Woosley contrary, they To the show con- careful sentencing judge, 1973), (8th Cir. him. sideration of the individual before the maximum although circumstances, Under pleaded guilty ato on a defendant who may appear un- to have been sentence duly Service violation Selective harsh, correction, as the such Su- practice for his declared that it had been indicated, preme is not for Court has impose thirty maxi- over Appeals. Court of eases. in selective service mum sentence Second, mechanical light supra, Dorszynski, F.2d at In the fact prima carefully can be judge attitude toward con- pros established sidered the and cons of facie prior cases. In court’s record similar dis- under the and the time-honored Act Woosley sentencing judge, case, supra, the Court the Appeals I cretion vested in the Eighth examined Circuit than that can reach other conclusion judgment found records and For the district court affirmed. should be consistency reasons, in the sentenc- unwarranted these I must dissent.