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UNITED STATES v. GLASGOW

January 27, 1975

UNITED STATES OF AMERICA
v.
CHARLES W. GLASGOW, JR.



The opinion of the court was delivered by: RICHEY

 CHARLES R. RICHEY

 This case is before the Court on the Defendant's Motion for Reconsideration of Sentence. *fn1" On January 4, 1974, the Defendant pleaded guilty to having illegally used the mails for the importation of marijuana (hashish) in violation of 21 U.S.C. §§ 843(b) and 952(a). The offense in this case consisted of his having sent a quantity of hashish from India to a friend and former college classmate in the United States. The Defendant was twenty-five years old at the time his plea was accepted by the Court. He had no prior criminal record.

 On February 19, 1974, the Court, in its discretion, suspended the imposition of sentence, and placed the Defendant on probation for three years, pursuant to 18 U.S.C. § 3651. *fn2"

 By the Motion for Reconsideration of Sentence, the Defendant now seeks to be considered as a young adult offender under 18 U.S.C. § 4209 and, as such, placed on probation under 18 U.S.C. § 5010(a), *fn3" the applicable provision of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005 et seq. This modification and transfer of probation is sought by the Defendant so that he may later have the opportunity to have his conviction set aside under § 5021(b) of the Youth Corrections Act, and thus avoid the stigma of having a felony conviction on his record.

 I. IN ITS DISCRETION, THE COURT MAY MODIFY PROBATION ORDERED PURSUANT TO 18 U.S.C. § 3651.

 It is beyond dispute that the Court has the power to modify the conditions of the Defendant's probation. Section 3651 of Title 18, United States Code, provides, in pertinent part, that "the court may revoke or modify any condition of probation. " Such modification lies within the Court's discretion. Burns v. United States, 287 U.S. 216, 221, 53 S. Ct. 154, 156, 77 L. Ed. 266, 269 (1932); United States ex rel. Grossberg v. Mulligan, 48 F.2d 93, 94 (2d Cir. 1931); Splawn v. Fitzharris, 297 F. Supp. 44, 45 (C.D. Cal. 1969). Furthermore, it has long been recognized that in the exercise of its discretion, the court should construe the statute liberally in light of the Probation Act's remedial nature and humanitarian purposes. Mann v. United States, 218 F.2d 936, 940 (4th Cir. 1955); Scalia v. United States, 62 F.2d 220, 223 (1st Cir. 1932); Rosenwinkel v. Hall, 61 F.2d 724, 726 (7th Cir. 1932); Reeves v. United States, 35 F.2d 323, 325 (8th Cir. 1929). The legislative history of the Probation Act, as discussed in United States v. Murray, 275 U.S. 347, 354-55, 48 S. Ct. 146, 148, 72 L. Ed. 309, 311-312 (1928), reveals that the statute is to be sympathetically interpreted to facilitate the reform of young and new offenders; the approach mandated by Congress is one of "intelligent compassion". United States v. Moore, 158 U.S. App. D.C. 375, 486 F.2d 1139, 1174 ( D.C. Cir. 1973) (Leventhal & McGowan, JJ., separate opinion).

 Therefore, the determination of whether the Defendant's request falls within the modification of conditions of probation as authorized by 18 U.S.C. § 3651 must be made in light of the rehabilitative purpose of the statute. *fn4" In Burns v. United States, 287 U.S. 216, 53 S. Ct. 154, 77 L. Ed. 266, the Court held that if that purpose is to be accomplished,

 
". . . an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane, and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion."

 287 U.S. at 220. The criteria to be used by the court are the interests of justice, the public and the defendant. Id. at 221.

 II. PROBATION UNDER 18 U.S.C. § 5010(a) CONSTITUTES "TREATMENT" FOR THE PURPOSES OF THE YOUTH CORRECTIONS ACT AND 18 U.S.C. § 4209.

 In the case now before the Court, the Defendant seeks to have his probation modified pursuant to 18 U.S.C. § 3651, and transferred to 18 U.S.C. § 5010(a), the probation provision of the Federal Youth Corrections Act. It is clear that he would be eligible as a young adult offender for consideration under the Act. A person between the ages of 22 and 26 at the time of conviction may be sentenced under the youth offender provisions if "the court finds there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act . " *fn5" 18 U.S.C. § 4209. *fn6"

 The threshold question, therefore, is whether probation is a form of "treatment" for the purposes of the Youth Corrections Act and 18 U.S.C. § 4209. This determination must be made in light of the fact that both of those statutes "were designed by the Congress for the rehabilitation of youthful offenders, and not solely for confinement upon conviction for criminal offenses . " Rawls v. United States, 331 F.2d 21, 27 (8th Cir. 1964). *fn7"

 The flaw in the government's reasoning is that the use of the word "committed" in 18 U.S.C. § 5011 does not make treatment dependent upon the youth offender's being sentenced to the custody of the Attorney General pursuant to 18 U.S.C. § 5010(b) or § 5010(c). In the first place, § 5011 is not the definitional section of the statute. Rather, 18 U.S.C. § 5006, entitled "Definitions", states that "'Treatment' means corrective and preventive guidance designed to protect the public by correcting the antisocial tendencies of youth offenders." 18 U.S.C. § 5006(g). This definition is broad enough to include both probation and commitment, as well as other methods of treatment. Section 5011 must be read as merely setting out some of the treatment ...


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