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UNITED STATES v. TILLMAN

March 14, 1974

UNITED STATES
v.
John Thomas TILLMAN


Parker, District Judge.


The opinion of the court was delivered by: PARKER

PARKER, District Judge.

In this memorandum the District Court will set forth the proceedings which have been conducted and the findings which have been made on remand of this case from the Court of Appeals.

 Pursuant to orders of the Court of Appeals of July 16, 1973, and August 10, 1973, an updated study of the defendant was performed in accordance with 18 U.S.C. § 5010(e) for the purpose of obtaining information concerning the defendant's suitability for treatment under the Federal Youth Corrections Act (YCA). After receipt of the updated 5010(e) report, which purported to recommend against a YCA sentence, the Court determined that it would be necessary to conduct further proceedings in order to present to the Court of Appeals a supplemented record which contained a clear and adequate disclosure on the issues relating to the defendant's sentence. As a result of this inquiry the Court has observed that the recommendations of the updated and original 5010(e) reports against sentencing the defendant under the YCA are founded on improper considerations of law and fact and thus do not support the prior judgment of this Court sentencing the defendant as an adult. Furthermore, during the course of these proceedings the Court discovered procedural and substantive problems in the 5010(e) observation and study process at the Lorton Youth Center's diagnostic unit which have been impeding the preparation of "the type of thorough, knowledgeable report which the Court requires to exercise its responsibilities under the [YCA]." *fn1"

 Accordingly, the District Court submits this supplemented record to the Court of Appeals and suggests that the case be remanded so that this Court may: (1) entertain a motion to resentence the defendant pursuant to Rule 35 of the Federal Rules of Criminal Procedure for correction of an illegal sentence; and (2) establish guidelines and instructions for the Department of Corrections to correct present inadequacies in the 5010(e) evaluation process, as reflected in the record, pursuant to the Court's power under 18 U.S.C. § 5010(e) to designate the quality of the information which it desires from the classification or diagnostic agency. *fn2"

 The defendant was convicted of first degree felony murder *fn3" in November, 1970, when he was not quite 20 years old, and was sentenced to life imprisonment, with the possibility of parole only after the service of 20 years of his sentence. *fn4" The Court reconsidered the defendant's sentence after the Court of Appeals held that offenders convicted of murder were eligible for Youth Corrections treatment, *fn5" and committed the defendant to the classification unit at the Lorton Youth Center for a period of observation and study pursuant to 18 U.S.C. § 5010(e) to obtain information as to whether the defendant would derive benefit from treatment under a YCA sentence.

 The 5010(e) report which the Court received, dated September 28 and 29, 1973, consisted of a Classification Study prepared by George F. DeFord, Classification and Parole Officer; a Psychological Evaluation prepared by Robert L. Goldstone, Clinical Psychologist; and the Classification Committee's Evaluation and Recommendation signed by Mr. DeFord, Mr. Goldstone, and Joseph E. Cheek, then Associate Superintendent of the Classification Unit.

 The Classification Committee recommended against a Youth Act commitment for the defendant:

 
"The Committee notes that Mr. Tillman has been consistently involved with aggressive acts for the past eight years and he has been going in a step-by-step fashion to progressively worse offenses. He has exhibited no respect for the properties of others. The staff sees Mr. Tillman as a young man needing to be in a structural situation and needing long term incarceration. The Committee does not feel that Mr. Tillman is a candidate for the Youth Center and its program. Therefore, the Classification Committee recommends that Mr. Tillman be sentenced under 4208(a) (2). In addition, it is felt that Mr. Tillman is a little too assaultive for our population."

 The Classification Committee, therefore, in reaching its conclusion that the defendant should not be committed to the Youth Center relied heavily on the defendant's involvement in progressively more aggressive offenses for the preceding eight years, his assaultive nature, and his need for a more structured and longer term incarceration than he would receive at the Youth Center.

 The Classification Study explained that the defendant had only a modicum of potential for rehabilitation, probably not within the framework of the Youth Center, because he was thought to be dull witted, and a "street sophisticate" and "follower type" who has committed progressively more serious aggressive acts.

 The Psychological Evaluation pointed out that the defendant's major need was psychotherapy which, to be effective, would have to extend for a period longer than the time an individual customarily remains at the Youth Center. It concluded that the defendant should not therefore be sentenced under the YCA.

 Relying on this 5010(e) report the Court found that the defendant would not benefit from rehabilitative treatment under the YCA, principally for the reason that "the defendant's past and increasing participation in aggressive anti-social behavior" required treatment for a longer period, in a more structured program, and with more extensive psychotherapy, than would be available from a commitment to the Youth Center. *fn6" The Court reimposed its earlier sentence in November, 1971, from which judgment the defendant appealed.

 On appeal the defendant challenged, inter alia, the sentence imposed by the District Court for the reason that the Classification Committee might have placed improper reliance in formulating its recommendation against a YCA commitment on the existence of an illegal sentencing alternative. *fn7" The defendant suggested that the case be remanded to the District Court so that the Classification Committee could produce a new recommendation based on correct statutory sentencing alternatives, and the Court could resentence the defendant accordingly.

 The Court of Appeals held, in an opinion filed June 6, 1973, *fn8" that the reasons on which the District Court had based its decision to deny the defendant a YCA commitment were in part legally impermissible and in part lacking in sufficient factual support. The case was remanded for reconsideration of sentence, with the comment that the District Judge might order a new 5010(e) evaluation.

 The Court initiated the reconsideration of the defendant's sentence by requesting, on July 5, 1973, the preparation of an updated 5010(e) report. The request indicated that additional disclosure would be necessary if the recommendation of the Classification Committee again relied on factors such as overcrowding, lack of local treatment services which meet the defendant's needs, and the defendant's character traits, such as aggressiveness or assaultiveness, factors which in the original 5010(e) report were of some concern to the Court of Appeals.

 The mandate of the Court of Appeals filed on July 16, 1973, remanded the record to the District Court "for the limited purpose of allowing the trial court to entertain a motion of appellant to have appellant transferred to the Youth Center for an updated 5010(e) Report." The mandate did not appear to grant the District Court jurisdiction to reconsider Youth Corrections ...


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