LEONARD P. WALSH, District Judge.
This matter comes before the Court on a remand for resentencing by the United States Court of Appeals for the District of Columbia.
On April 25, 1969, this Court originally sentenced this defendant, who was at the time of his conviction both a youth offender under 18 U.S.C. §§ 5001-5026 (e.g., between the ages of 18 and 22), and "guilty of an offense punishable by imprisonment under other applicable provisions of law."
While these two requirements of eligibility for sentencing under the Federal Youth Corrections Act were thus met, the Court sentenced the defendant pursuant to the adult statutes governing the offenses for which he was convicted: to a period of from 4 to 12 years on each of three counts of robbery, to run concurrently; to a period of 3 to 9 years on each of three counts of assault with a dangerous weapon, to run concurrently with each other and also to run concurrently with the robbery counts. This Court further recommended that "serious consideration be given by the prison authorities that this defendant be confined in a youth institution."
At the outset, this Court wishes to make one point clear. By recommending confinement of the defendant in a youth institution, this Court did not intend to make an implicit finding that this defendant would benefit from commitment under the Youth Corrections Act.
On the contrary, it was the opinion of this Court on April 29, 1969, and it is still the opinion of this Court, that defendant will not benefit from commitment under the Youth Corrections Act.
The Opinion of the Circuit Court states that under 5010(d) "the court must affirmatively find that the youth offender will not benefit from rehabilitative treatment before the offender can be sentenced as an adult pursuant to the statute governing the offense for which he was convicted."
In order to dispel the apparent confusion caused by the sentences imposed and the recommendation of this Court at the original sentencing of the defendant, this Court affirmatively finds, after serious consideration,
that the defendant Tyrone P. Waters will not derive benefit from treatment under 5010(b) or 5010(c) of the Federal Youth Corrections Act.
This finding is based on an analysis of all data made available for this Court's inspection.
Prior to sentencing on April 25, 1969, this Court, as is its custom, studied the presentence report
and such other information
as this Court deemed requisite to an arrival at the appropriate individualized sentence.
In this particular case, with its particular facts, this Court now commits the defendant Tyrone P. Waters to the custody of The Attorney General, or his designated representative, for confinement in an institution of his designation, on the robbery counts 1, 3 and 5, for a period of from 2 to 6 years to run concurrently; and on counts 2, 4, and 5, assault with a dangerous weapon, for a period of from 2 to 6 years, to run concurrently, and to run concurrently with the sentences imposed on counts 1, 3 and 5; and also to run concurrently with any other sentence now being served.
This Court is cognizant of the Congressional scheme as concerns youth offenders, and is, therefore, appreciative of the difficulties begotten by the incorrect combination of an adult sentence and a recommendation as to a youth institution, which, legally if not logically, precluded the required affirmative finding that the defendant would not benefit from treatment under 5010(b) or (c). However, the Court wishes to express its deep concern over another aspect of the Circuit's opinion in this case.
On page 725 of the opinion, 437 F.2d, it is said "Appellant here moved under Section 5010(e) for a presentence commitment for observation at a youth center in order that the court might secure 'information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c).'" This incomplete citation from the Code would seem to restrict the trial judge solely to the 5010(e) evaluative summary when considering whether a defendant will benefit from a Youth Act commitment. In other words, if the report recommends Youth Act commitment the trial judge is bound by law to follow that recommendation. However invalid, the possibility of such an interpretation of 5010(e) has caused much consternation in this Court. Unlike the opinion, the statute clearly reads,
"If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsections (b) or (c), it may order that he be committed to the custody of the Attorney General for observation and study at an appropriate classification center or agency. Within sixty days from the date of such order, or such additional period as the court may grant, the Division shall report to the court its findings."
The 5010(e) report, then, while of obvious importance due to the presumed particular expertise of those who compose it, is not to be the sole consideration
of the trial judge before he performs his awesome duty
through pronouncement of sentence. The presentence report also holds a prominent place in this decision making process.
And the court ultimately must determine the appropriate individualized sentence not by a mere quantitative accounting process,
but by a careful qualitative analysis of all data presented to it.
It is significant to note that throughout the Opinion the Appellate Court repeatedly refers to the discretion of the trial judge:
1. "These considerations do not, of course, prevent the trial judge from exercising his sound discretion to deny such rehabilitative treatment * * *". Waters, 437 F.2d at 724.
2. "If * * * the judge is convinced the youth is incorrigible and would derive no help from the program, he may sentence him under any applicable provision of law." Waters, at 724-725.