United States v. Linda H. Schwarz

500 F.2d 1350, 1974 U.S. App. LEXIS 7497

• Court: Court of Appeals for the Second Circuit
• Decided: July 23, 1974
• Docket: 1152, Docket 74-1455
• Status: Published

Opinions

PER CURIAM:

The appellant, a first offender, was sentenced to four years imprisonment pursuant to 18 U.S.C. § 4208(a)(2) and three years special parole.

It is common ground that the appellant is a young lady with a stable family background. She was 25 years of age at the time of the plea and sentence and had had no previous contacts with law enforcement authorities. An honor student and a college graduate, the appellant was the product of an intact, financially secure home. She was engaged to be married and has been married during the course of these proceedings. She made a full acknowledgment of her offense and cooperated with the Government. There was no evidence that she was connected with any organized criminal activity. On February 19, 1974, her constitutional rights to indictment and trial were waived and a plea of guilty was entered to a one count information.

Concededly, the appellant was eligible by virtue of her age and as a “young adult offender,” 18 U.S.C. § 4209, for the treatment provided under the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq., and could have been sentenced pursuant to its provisions. While the district court acted within the scope of its discretionary powers, 18 U.S.C. § 4209, in rejecting her plea to be sentenced as a “young adult offender,” we are constrained to disapprove of the manner in which this was done and to remand the case for re-sentence before another judge.

During the rather extended colloquy attendant upon her sentencing proceedings, the district court made much of the fact that the appellant came from a privileged background rather than from “the ghetto” and was not the “usual dumb kid.” The court referred to her as one “far above the average, so that she knew what she was doing.” Understandably, the appellant has been left with the impression, forcefully argued to us by her counsel, that her intelligence and privileged background were counted against her as pejorative factors disentitling her to treatment under the Youth Corrections Act.¹ The court’s explication, coupled with its express refusal of what appears to have been a joint request of defense counsel and the United States Attorney that the court make a specific finding that appellant would not derive benefit from treatment under the Act, leads us to conclude that the court employed a fixed and mechanical approach in imposing sentence rather than a careful appraisal of the variable components relevant to the sentence upon an individual basis. Williams v. Oklahoma, 358 U.S. 576, 585, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Williams v. New York, 337 U.S. 241, 247-250, 69 S.Ct. 1529, 93 L.Ed. 1760 (1949). This situation requires us to invalidate the sentence. United States v. Brown, 470 F.2d 285, 288-289 (2d Cir. 1972); United States v. Baker, 487 F.2d 360, 362-364 (2d Cir. 1974) (Lumbard J., dissenting; Woolsey v. United States, 478 F.2d 139, 143-145 (8th Cir. 1973). We are aware that United States v. Kaylor, 491 F.2d 1133 (2d Cir. 1974) (en banc) dealt with the “youth offender” 2 and required no express finding in this case of a “young adult offender”³ that she would derive “no benefit” from a sentence under the Youth Corrections Act. Compare Dorszynski v. United States, -U.S.-, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). The presence or absence of the specific finding sought by the attorneys is not a controlling factor. The court’s statements, considered as a whole, were inappropriate because they are susceptible of the meaning that only a specific class of persons can claim consideration under the provisions of the Act.

Under these circumstances we direct that the case be reassigned for sentence by another judge “both for the judge’s sake and the appearance of justice,” Mawson v. United States, 463 F.2d 29, 31 (1st Cir. 1972) (per curiam); United States v. Brown, supra.⁴

Judgment reversed with instructions to vacate the sentence and to proceed to resentence in a manner consonant with this opinion.

1 . This conclusion is supported by Judge Travia's comments at the time of sentence :

“[Sllie’s not the ordinary so-called individual who . . . doesn’t know the nature of her act or that she comes from such terrible circumstances that the family— she became involved. This young lady was in a different sphere of influence entirely, brought up differently. She’s been to college. She’s graduated from college. So that she cannot argue from the point of view that she was so-called ignorant of what was going on or that she was befuddled or was drawn into a picture or didn’t know what was going on. Not the usual dumb kid who is dragged in.

“So when you say she is young — sure, I wish I was young at 25 or 26. But not that young that we don’t know what we are doing at that stage .... It’s not like dealing with a youngster who comes out of the ghetto, who grows up to know nothing that is right except to commit one crime after another to satisfy whatever may be his problems at the time.

“A youngster at this age and this caliber, of this type of background and education, pretty much cannot plead ignorance.

“I am not dealing here with the usual type of individual who comes before us where they have all the — these personal problems and family problems and all that, things where they really might have an argument that they were unaware of all these ramifications of the law.

“Here we don’t have — if I could use the word of a dumb kid who didn’t know what she or he were doing. We have a person who in my judgment is far above the average, so that she knew what she was doing. She certainly knew the nature of what she was doing in that she was fooling around with stuff that was, you know, a little bit of dynamite.”

2 . 18 U.S.C. § 5006(e): “ ‘Youth offender’ means a person under the age of twenty-two years at the time of conviction.”

3 . 18 U.S.C. § 4209: “. . . a defendant who has attained his twenty-second birthday but lias not attained liis twenty-sixth birthday at the time of conviction. . . . ”

4 . The judge on remand may wish to consider resentencing under the Youth Corrections Act since it appears that the term “conviction” in 18 U.S.C. § 4209, supra note 3, would mean the date of the plea of guilty in the context of this case and the appellant would therefore qualify for such consideration. United States v. Kleinzahler, 306 F.Supp. 311, 313-314 (E.D.N.Y.1969); cf. Standley v. United States, 318 F.2d 700, 701 (9th Cir. 1963).