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09/20/91 WALKER LATIMORE v. UNITED STATES

September 20, 1991

WALKER LATIMORE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Henry H. Kennedy, Jr., Trial Judge

Rogers, Chief Judge, and Terry and Wagner, Associate Judges.

The opinion of the court was delivered by: Terry

In case No. 88-1113 a jury found appellant Latimore guilty of one count each of distribution of phencyclidine (PCP), distribution of marijuana, possession of PCP with intent to distribute it, and possession of marijuana with intent to distribute it. *fn1 Since Latimore was nineteen years old at the time of sentencing, the court sentenced him under the Youth Rehabilitation Act (YRA), D.C. Code §§ 24-801 to 24-807 (1989), to concurrent terms of ten years' incarceration for distribution of PCP and one year each for the other three offenses. Latimore's sole contention on appeal is that these concurrent one-year sentences must be set aside because they frustrate one of the purposes of the YRA. We agree, and accordingly we vacate all the sentences and remand the case for resentencing. *fn2

I

Before October of 1984, Judges in our Superior Court could sentence youthful offenders under the Federal Youth Corrections Act (FYCA), 18 U.S.C. §§ 5005-5026 (1982). When Congress repealed the FYCA in the course of enacting a major federal criminal statute, *fn3 the Council of the District of Columbia moved quickly to fill the resulting void. Bill No. 6-47 was introduced and in due course enacted into law by the Council as the Youth Rehabilitation Act, D.C. Law 6-69, 32 D.C. Reg. 7395 (1985).

The FYCA had provided in pertinent part:

If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender to the custody of the Attorney General for treatment and supervision pursuant to this chapter until discharged by the Commission as provided in section 5017 (c) of this chapter . . . .

18 U.S.C. § 5010 (b).

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.

18 U.S.C. § 5017 (c). A practical effect of these two provisions was to prevent a Judge from imposing a sentence of more than six years under section 5010 (b), the most frequently used provision of the FYCA. *fn4 However, a youth offender could be committed under the FYCA for up to six years even for offenses carrying maximum adult sentences of less than six years. See Tatum v. United States, 114 U.S. App. D.C. 49, 310 F.2d 854 (1962); Cunningham v. United States, 256 F.2d 467, 471-473 (5th Cir. 1958).

The bill originally introduced before the Council contained language similar to that in section 5010 (b) of the FYCA, except that it expressly limited the maximum sentence which a Judge could impose under the act to six years. Section 4 (b) of the initial version of Bill 6-47 provided:

If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may, in lieu of the penalty of imprisonment otherwise provided by law, sentence the youth offender for treatment and supervision pursuant to this act for a period not to exceed six years. The youth offender shall serve the sentence of the court unless sooner released as provided in section 5 of this act.

COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL No. 6-47 (1985) (hereinafter REPORT), Attachment 1 at 2-3. Section 5 (c) of the original bill was likewise identical to section 5017 (c) of the FYCA. Id., Attachment 1 at 4. Thus it would have been possible under the original bill, as under the FYCA, for a youth offender to receive a six-year sentence for an offense that carried a maximum adult sentence of less than six years -- e.g., any misdemeanor.

This possibility was of concern to many of those who testified before the Council on Bill 6-47. See, e.g., Statement of Charles J. Ogletree, Deputy Director, Public Defender Service, reprinted in REPORT, supra, Attachment 5 at 10; Statement of M. Shanara Gilbert, Chairperson, Washington Chapter, National Conference of Black Lawyers, reprinted in REPORT, supra, Attachment 12 at 6; Statement of Stephen G. Milliken, Esquire, reprinted ...


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