United States v. Rebecca Ann Smith, United States of America v. Clifford Rickard Arthur

683 F.2d 1236, 1982 U.S. App. LEXIS 16722

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 10, 1982
• Docket: 80-1380, 80-1479
• Status: Published

Opinions

PREGERSON, Circuit Judge:

These consolidated appeals, both arising in the District of Oregon, present the question whether a “split sentence” is lawful under the Youth Corrections Act [“YCA”], 18 U.S.C. §§ 5005 — 26, and, if so, whether the offender must be segregated from adults during confinement.

The appellant in No. 80-1380, Rebecca Ann Smith, was indicted in February 1980 on one count of embezzling funds from the federally-insured bank where she worked, in violation of 18 U.S.C. § 656. She entered a guilty plea, and was sentenced under the YCA, 18 U.S.C. § 5010(a). (Smith was twenty years old at the time of sentencing.) She received a five-year sentence, but on condition that she be “confined in a jail-type setting” for forty-five days,¹ execution of the remainder of the sentence was suspended and Smith was placed on five years’ probation.

The appellant in No. 80-1479, Clifford Rickard Arthur, was indicted in March 1980 on one count of stealing two bicycles on the Warm Springs Indian Reservation, in violation of 18 U.S.C. §§ 1153 and 661. He entered a guilty plea, and was sentenced under the YCA.² (Arthur was nineteen years old at the time of sentencing.) He received a three-year sentence, but on condition that he serve thirty days “in a jail type institution,” execution of the remainder of the sentence was suspended and Arthur was placed on five years’ probation.

Both Smith and Arthur appeal their sentences. They concede that the YCA permits a trial court to suspend the execution of sentence and place the youth offender on probation. 18 U.S.C. § 5010(a). They contend, however, that it does not authorize the “split sentences” imposed here, in which a brief period of incarceration is made a condition of probation. The government replies that the YCA incorporates the general probation statute, 18 U.S.C. § 3651, which in turn explicitly allows split sentences. It further argues that a youth offender who is given such a split sentence may be incarcerated in an adult-type jail.

These issues have apparently not been addressed by other circuits. A panel of this circuit has held that the Supreme Court’s opinion in Durst v. United States, 434 U.S. 542, 98 S.Ct. 849, 55 L.Ed.2d 14 (1978), implies that split sentences are proper under the YCA and that our pre-Durst ruling to the contrary in United States v. Marron, 564 F.2d 867 (9th Cir. 1977), is no longer good law. United States v. McDonald, 611 F.2d 1291, 1294 (9th Cir. 1980). The issue, however, arose in McDonald in a tangential fashion and had not been raised, argued, or briefed by the parties. We therefore set the instant appeals for en banc consideration to clarify the law of this circuit as to the interrelation between the YCA and the split sentence provision of the general probation statute.³

I. Is a split sentence permissible under the YCA?

The general probation statute, 18 U.S.C. § 3651, gives district courts power to impose a split sentence on a defendant convicted of a non-capital offense punishable by imprisonment for more than six months but less than life. More precisely, section 3651 allows the court to sentence such a defendant to a term:

in excess of six months and provide that the defendant be confined in a jail-type institution or a treatment institution for a period not exceeding six months and that the execution of the remainder of the sentence be suspended and the defendant placed on probation for such period and upon such terms and conditions as the court deems best.

The Supreme Court has stated that one section of the YCA, 18 U.S.C. § 5023(a),⁴ “incorporates by reference the authority conferred under the general probation statute,” Durst v. United States, 434 U.S. 542, 549, 98 S.Ct. 849, 853, 55 L.Ed.2d 14 (1978), and was intended “to preserve to sentencing judges their powers under the general probation statute when sentencing youth offenders to probation.” Id. at 551, 98 S.Ct. at 854. It would seem to follow that section 5023(a) engrafts the split sentence provision of section 3651 onto the YCA, so that a court placing a youth offender on probation under the YCA would have the power to require the offender to serve up to six months of confinement before his probationary period commenced.

There is, however, a strong argument against that conclusion. The split sentence authorization was added to section 3651 eight years after the enactment, in 1950, of the YCA, including section 5023(a).⁵ Hence, in 1950 when Congress sought to ensure that the YCA would leave “the power of the court to grant probation .. . undisturbed,”⁶ federal courts had no power to impose a split sentence at all.⁷

The crucial issue, therefore, is whether Congress intended section 5023(a) to incorporate into the YCA the specific provisions of section 3651 as of 1950, or whether it intended that subsequent changes in the general probation authority of federal courts would apply in the YCA context as well. The answer is by no means self-evident,⁸ and reasons can be given in support of either conclusion. We believe, however, that the more persuasive reasons are those indicating an intent that post-1950 amendments to the probation statute should apply to YCA sentencing.

This is not to deny that some factors do suggest the contrary conclusion. For example, the Durst Court, as noted above, spoke of section 5023(a) as designed to “preserve” in YCA proceedings the authority of courts under section 3651 — a term that suggests specific incorporation of section 3651 as it existed when the YCA was passed. Also, Durst relied in part on explicit legislative history manifesting a Congressional intent to allow fines to be imposed as part of YCA sentences. Durst, supra, 434 U.S. at 552-53, 98 S.Ct. at 854-55. There is no corresponding legislative history indicating an intent to allow split sentences under the YCA.⁹ Indeed, the use of a split sentence involving incarceration for a determinate period of at most six months is arguably inconsistent with the general sentencing scheme of section 5010, under which the sentencing court “may only order an inde- ” terminate sentence for six years or longer, Watts v. Hadden, 651 F.2d 1354, 1372 (10th Cir. 1981). See United States v. Jackson, 550 F.2d 830, 831 (2nd Cir. 1977).¹⁰ Such a sentence is also seemingly at odds with the literal language of section 5010(a), which makes probation an option “[i]f the court is of the opinion that the youth offender does not need commitment.¹¹

Nevertheless, these factors are outweighed by those which suggest that courts sentencing youth offenders are meant to enjoy whatever powers are conferred by section 3651 as amended since 1950. Despite the Durst Court’s characterization of section 5023(a) as “incorporatfing] by reference the authority conferred under the general probation statute,” Durst, supra, 434 U.S. at 549, 98 S.Ct. at 853, section 5023(a) does not appear to be a “statute of specific reference” — i.e., one that literally “adopts” or “incorporates” a pre-existing statute. If section 5023 were a statute of specific reference, the usual canons of statutory interpretation would counsel us to read it as incorporating the probation statute as of 1950, unaffected by the 1958 amendment, unless there is some very clear indication to the contrary. See Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 564, 82 L.Ed. 858 (1938); Pearce v. Director, Office of Workers’ Compensation Programs, 603 F.2d 763, 767 (9th Cir. 1979). But section 5023(a) is not designed to adopt by reference the general probation statute and “mak[e] it as much a part of the later act as though it had been incorporated at full length.” Engel v. Davenport, 271 U.S. 33, 38, 46 S.Ct. 410, 412, 70 L.Ed. 813 (1926). Rather, it merely provides that the YCA is not to “be construed in any wise to amend, repeal, or affect the provisions of” the probation statute. Providing, in this manner, that the YCA not be read as affecting section 3651 actually emphasizes that these are distinct statutes, and certainly exhibits no intent to make section 3651 an integral part of the YCA. Thus the canon of construction applicable to statutes of specific reference is inapplicable here. Rather, section 5023(a) indicates a congressional intent that whatever powers the probation statute grants courts generally — including powers added by subsequent amendments — should be available in the YCA context as well.¹²

Most importantly, we believe that reading the YCA as allowing courts to impose split sentences on youth offenders is the more appropriate interpretation in view of the policies that the YCA is designed to advance. It is proper, and indeed essential, to interpret the words of a statute in the light of the purposes Congress was seeking to serve. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 608, 99 S.Ct. 1905, 1911, 60 L.Ed.2d 508 (1979). Here, permitting split sentences is consistent with the Supreme Court’s emphasis that “the YCA strongly endorses the discretionary power of a judge to choose among available sentencing options,” Ralston v. Robinson, 454 U.S. 201, 102 S.Ct. 233, 237, 70 L.Ed.2d 345 (1981), and “was meant to enlarge, not restrict, the sentencing options of the federal trial courts.” Dorszynski v. United States, 418 U.S. 424, 436, 94 S.Ct. 3042, 3049, 41 L.Ed.2d 855 (1974). This policy of flexibility and the grave responsibility that district courts bear in deciding what course of treatment will be most likely to bring about the elusive goal of rehabilitating youthful offenders argue strongly for resolving any doubts in favor of maximizing the sentencing options available to district judges.

Our result supports the rehabilitative goals of the YCA. A court convinced that a particular youth offender merited a split sentence and YCA treatment, rather than straight YCA probation or an adult split sentence, will be able to impose such a sentence under the YCA, and thereby still permit the youth to have his conviction set aside under section 5021(b) upon discharge from the split sentence probation.¹³ Moreover, if a court finds that straight YCA probation would be too lenient, it will have an alternative other than the more severe sanctions available under section 5010(b) or 5010(c). Cf. United States v. Oliver, 546 F.2d 1096, 1099 (4th Cir. 1976) cert. denied, 435 U.S. 914, 98 S.Ct. 1466, 55 L.Ed.2d 504 (1978) (to hold that fines could not be imposed as a condition of probation under the YCA might “diminish the liberal use of the probation alternative”).

Having considered the factors set out above, we conclude that split sentences, as authorized by 18 U.S.C. § 3651, are permissible under the YCA.

(II) Must youth offenders who receive split sentences under the YCA be segregated from adults during confinement?

We have concluded that Congress’s 1958 authorization of split sentences is applicable to youth offenders placed on probation under the YCA. Nevertheless, Congress did not contemplate the possibility of a split sentence for youth offenders when it enacted the YCA in 1950. Consequently, it did not address the question whether youth offenders incarcerated pursuant to such a sentence must be segregated from adult prisoners and confined in separate institutions. Nor has Congress addressed that question explicitly since enacting the split-sentence authorization.

Thus the YCA, as it stands, contemplates only two categories of incarcerated youth offenders: those committed for treatment under section 5010(b) or (c), and those sentenced as adults under section 5010(d). Congress clearly intended that youth offenders in the former category be separated from adult prisoners and confined in separate institutions,¹⁴ and made such separation mandatory (absent special circumstances) in section 5011.¹⁵ Youth offenders sentenced to imprisonment as adults, on the other hand, need not be segregated from adults.¹⁶ We must decide, in light of the overall scheme and rehabilitative purpose of the YCA, into which of these two categories youth offenders incarcerated for up to six months under section 5010(a) are most appropriately placed.¹⁷

The youth offenders who Congress believed did not require segregation from adults are those sentenced as adults under section 5010(d) — those whom the sentencing court has specifically found “will not derive benefit from treatment.” No such finding precedes the imposition of probation (with or without a split sentence) under section 5010(a). Indeed, probation itself is a form of “treatment” under the YCA, which in section 5006(f) defines “treatment” quite broadly as “corrective and preventive guidance and training designed to protect the public by correcting the antisocial tendencies of youth offenders.” Probation clearly satisfies this definition, for it is aimed at “correcting the antisocial tendencies” of the probationer through an individualized program supervised by a probation officer who seeks to guide the probationer into improving his conduct and becoming a law-abiding citizen. United States v. Glasgow, 389 F.Supp. 217, 220-22 (D.D.C.1975).

Since youth offenders who are given split sentences are thus receiving treatment under the YCA, they merit the separation from hardened adult criminals that Congress believed “essential to the operation of a successful rehabilitative treatment program.” Durst v. United States, 434 U.S. 542, 545, 98 S.Ct. 849, 851, 55 L.Ed.2d 14 (1978). “[T]he legislative history [of the YCA] makes it clear that Congress viewed separation of youth offenders from older, more sophisticated inmates as the crucial initial step in preventing transformation of the youths into hardened criminals.” Watts v. Hadden, 651 F.2d 1354, 1365 (10th Cir. 1981). Congress thus believed exposure to adult criminals posed an unacceptable risk of corrupting those youth offenders who require potentially lengthy commitment under section 5010(b) or (c) in order to be treated. It would be illogical indeed to suppose, then, that Congress would have countenanced such exposure for youth offenders who merit the less onerous split sentence.¹⁸

We conclude that youth offenders who receive split sentences under the YCA must be kept segregated from adult inmates during their confinement, and must be incarcerated, insofar as practical, in separate facilities.¹⁹

The judgments of the district courts are REVERSED insofar as they purported to impose determinate minimum sentences under the Youth Corrections Act and insofar as they failed to specify segregative confinement, and are in all other respects AFFIRMED. The cases are REMANDED for resentencing in accordance with this opinion.²⁰

1 . The court recommended incarceration on weekends in county jail.

2 . The court did not state explicitly that the sentence was pursuant to the YCA, but did find that Arthur “will derive benefit from handling under the Federal Youth Corrections Act.”

3 . In addition to challenging the split sentences they were given, Smith and Arthur contend that the sentences which the trial courts imposed and suspended were improper because they were for determinate periods of five and three years, respectively, rather than for indeterminate periods, as the YCA requires. The government concedes that those sentences were improper, and we disapprove of them to the extent that they fix an inflexible period of incarceration, instead of merely setting a maximum term to be served in accordance with United States v. Amidon, 627 F.2d 1023 (9th Cir. 1980).

4 . Section 5023(a) states that:

Nothing in [the YCA] shall limit or affect the power of any court to suspend the imposltion or execution of any sentence and place a youth offender on probation or be construed in any wise to amend, repeal, or affect the provisions of [the probation statutes],

5 . Authority to impose a split sentence was added to § 3651 by the Act of August 23, 1958, Pub.L. 85-741, 72 Stat. 834.

6 . H.R.Rep.No.2979, 81st Cong., 2d Sess. 3 (1950), reprinted in [1950] U.S.Code Cong.Service 3983, 3985.

7 . Appellants contend that Durst is inapplicable to their cases for a second reason. The precise holding in Durst was that a fine or restitution may be imposed as a condition of probation under the YCA. Appellants noted that § 3651 explicitly lists fines and restitution among the “conditions” of probation that the district courts may impose. But incarceration, they argue, is not among those “conditions.”

We do not agree that Durst can be distinguished on this basis. Whether incarceration can be classified as a condition of probation is irrelevant, since § 3651 explicitly authorizes split sentences in addition to authorizing imposition of what it labels “conditions” of probation. The reasoning of Durst will therefore control here, and permit split sentences under the YCA, unless that reasoning is limited to the provisions of § 3651 as it read when the YCA was enacted.

8 . As this circuit has noted with some understatement, “the Youth Corrections Act does not mesh nicely with the Probation Act.” United States v. McDonald, 611 F.2d 1291, 1295 (9th Cir. 1980).

9 . At best, one might note that the House report on the bill that became the YCA stated that “the power of the court to grant probation is left undisturbed by the bill.” H.R.Rep.No. 2979, 81st Cong., 2d Sess. 3 (1950), reprinted in [1950] U.S.Code Cong.Service 3983, 3985. It could be argued that a conclusion that Congress has limited courts’ power to grant probation to youth offenders to whatever it was in 1950 would contradict the notion that Congress intended the YCA to have no effect on the probation power.

10 . Significantly, however, maximum YCA sentences of less than six years are now permissible — indeed, mandatory — under 18 U.S.C. § 3401(g), added by the Federal Magistrate Act of 1979, Pub.L.No. 96-82, § 7(a), 93 Stat. 645, which prohibits magistrates from sentencing youth offenders to more than one year for a misdemeanor or six months for a petty offense. Moreover, this court has held that district courts may not sentence a youth offender under the YCA to a term of confinement longer than the maximum that could be imposed on an adult for the same offense. United States v. Amidon, 627 F.2d 1023 (9th Cir. 1980).

11 . This appearance of inconsistency may be illusory, because in the split sentence context confinement is imposed pursuant to § 5010(b) or (c), and § 5010(a) does not become operative until the youth offender has been discharged from confinement. See note 20 infra.

12 . This interpretation of § 5023(a) is supported by the similar interpretation given to a parallel statute in Monarch Life Ins. Co. v. Loyal Protective Life Ins. Co., 217 F.Supp. 210 (S.D.N. Y.), rev’d on other grounds, 326 F.2d 841 (2nd Cir. 1963), cert. denied, 376 U.S. 952, 84 S.Ct. 968, 11 L.Ed.2d 971 (1964). At issue in Monarch Life was § 3(b) of the 1945 McCarran Act, 15 U.S.C. § 1013(b), which provided that nothing in that Act — which made federal antitrust laws generally inapplicable to state-regulated insurance businesses — “shall render the .. . Sherman Act inapplicable to any agreement to boycott, coerce, or intimidate, or act of boycott, coercion, or intimidation.” As of 1945, § 7 of the Sherman Act authorized private treble-damages actions for Sherman Act violations, but Congress repealed § 7 in 1955. The district court held that § 3(b) was not an “adoption” of the Sherman Act (and hence that after 1955, § 3(b) conferred no authority for a treble-damages action for Sherman Act violations in the insurance field). The district court reasoned that § 3(b) “merely provided that the Sherman Act should continue applicable to acts of boycott, coercion and intimidation in the insurance industry.” 217 F.Supp. at 215. This, said the court, was quite different from an adoption, where the adopting statute “evidence[s] a legislative intent to make the adopted statute an integral part of the adopting statute.” Id. at 214. That reasoning is equally applicable here, and suggests that under § 5023(a), courts sentencing youth offenders enjoy whatever powers the general probation statute, as currently amended, confers.

[The Second Circuit reversed Monarch Life because it held the treble-damages provisions of the Clayton Act applicable. It did not disturb the district court’s conclusion that § 3(b) was not an adoption of the Sherman Act.]

13 . Losing the possibility of setting aside the conviction can seriously thwart the goal of rehabilitation central to the YCA.

The provision for setting aside an offender’s conviction . . . has a curative effect which facilitates the accomplishment of the correction of antisocial tendencies of young offenders, and thus furthers the central goal of rehabilitation. If a young offender starts his adult life with a criminal record, it is likely that he will consider his chances for a respectable and rewarding future to be minimal. The stigma of a felony conviction is permanent and pervasive. Such a burden might lead a young person to reason that he is already a “marked man”, and thus [make] it more likely that he will be a recidivist.

United States v. Glasgow, 389 F.Supp. 217, 224-25 (D.D.C.1975) (footnotes omitted).

14 . “The need to segregate youth from adult criminals drew special attention in the legislative history” of the YCA. Ralston v. Robinson, - U.S. -, 102 S.Ct. 233, 240, 70 L.Ed.2d 345 (1981). The House Report on the bill that became the YCA warned, for example, that:

By herding youth with maturity, the novice with the sophisticate, the impressionable with the hardened, and by subjecting youth offenders to the evil influences of older criminals and their teaching of criminal techniques, without the inhibitions that come from normal contacts and counteracting prophylaxis, many of our penal institutions actively spread the infection of crime and foster, rather than check, it.

H.R.Rep.No. 2979, 81st Cong., 2d Sess. 2-3 (1950), reprinted in [1950] U.S.Code Cong.Service 3983, 3985.

15 . Section 5011 provides in relevant part that:

Committed youth offenders not conditionally released shall undergo treatment in institutions ... and other agencies.... Insofar as practical, such institutions and agencies shall be used only for treatment of committed youth offenders, and such youth offenders shall be segregated from other offenders, and classes of committed youth offenders shall be segregated according to their needs for treatment.

16 . Section 5011 does not apply to such offenders; it is limited by its terms to “committed youth offenders,” which, according to § 5006(e), means only offenders sentenced under § 5010(b) or (c).

17 . In deciding which result is most appropriate, our task is not to give the answer we think best but to project how Congress would have answered this question had it explicitly addressed the incarceration of youth offenders. Williams v. W.M.A. Transit Co., 472 F.2d 1258, 1265 (D.C.Cir. 1972).

18 . We also note that § 5021(b) allows youths given probation under § 5010(a) to have their convictions set aside upon discharge from probation — an opportunity similar to that afforded by § 5021(a) to those sentenced under § 5010(b) or (c), but one not extended to youths sentenced under § 5010(d). Setting aside the youth offender’s conviction serves rehabilitative ends. See note 13 supra. Hence this feature of the YCA strengthens our belief that youth offenders given probation, like those sentenced to commitment under § 5010(b) or (c), are meant to be dealt with in a manner that emphasizes the goal of rehabilitation, and should thus be segregated from adult offenders.

19 . We therefore agree with the view of the Third Circuit. United States ex rel. Dancy v. Arnold, 572 F.2d 107 (3rd Cir. 1978).

20 . To assist a sentencing judge who may wish to impose a split sentence under the YCA, we suggest that the following form of sentence would be appropriate:

The court finds that the defendant was_ years of age (18-21) at the date of conviction [or finds that the defendant was_years of age (22-25) at the date of conviction and that there are reasonable grounds to believe that the defendant will benefit from treatment under the Federal Youth Corrections Act as a young adult offender pursuant to 18 U.S.C. § 4216],

IT IS ADJUDGED that the defendant is hereby committed to the custody of the Attorney General of the United States, or his authorized representative, for treatment and supervision pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b) [or 5010(c) ] until discharged as provided in 18 U.S.C. § 5017(c) [or 5017(d) ], but in no event to exceed the statutory maximum that an adult could receive.*

IT IS FURTHER ADJUDGED that on condition that the defendant be confined for a period of_ months (six months or less), the execution of the remainder of the term of said commitment is hereby suspended and, upon release from commitment, the defendant, who at the time of such release will need no further commitment, is placed on probation, pursuant to 18 U.S.C. §§ 5010(a), 5023(a), and 3651, for a period of_years on the following terms and conditions:

1. That he/she comply with all local, state and federal law;

2. That he/she comply with the rules and regulations of the probation department;

3. (Any additional special provision.)

IT IS FURTHER ADJUDGED that during the period of his/her commitment, defendant, as required by 18 U.S.C. § 5011, shall be kept segregated from adult offenders and be confined, insofar as practical, in a separate facility.

*The addition of this clause satisfies the requirements of United States v. Amidon, 627 F.2d 1023 (9th Cir. 1980).