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October 30, 1969

UNITED STATES of America, Plaintiff,
Harris J. KLEINZAHLER, Defendant

Weinstein, District Judge.

The opinion of the court was delivered by: WEINSTEIN


WEINSTEIN, District Judge.

 The defendant has applied, pursuant to Rule 35 of the Federal Rules of Criminal Procedure, for correction of the sentence of this Court imposed on June 28, 1969. At that time, defendant was sentenced to two years' imprisonment, and imposition of that sentence was suspended. In addition, he was placed upon two years' probation and required to pay a fine of $1,000. The defendant seeks amelioration of this sentence under the Youth Corrections Act, through treatment as a "young adult offender." 18 U.S.C. §§ 4209, 5010(a). The chief advantage to this defendant of a sentence under the Youth Corrections Act is that he would be entitled to have his conviction "set aside" upon satisfactory completion of his probation. 18 U.S.C. § 5021(b). For the reasons stated below, the motion must be denied.


 On April 3, 1969, the defendant pleaded guilty to acquisition of marihuana without payment of a transfer tax. 26 U.S.C. § 4744(a). The plea was accepted one day before the defendant's twenty-sixth birthday. Sentencing was deferred pending the completion of a presentence report by the Probation Department. This report was not completed until June. The sentencing panel then conferred (see Zavatt, Sentencing Procedure in the United States District Court for the Eastern District of New York, 41 F.R.D. 465 at 469 (1967)) and defendant was sentenced on June 28, 1969.

 The defendant is a college graduate employed as a Budget Analyst with a major corporation at a high salary. He has no prior criminal record. His purchase in Mexico of the marihuana involved was for his personal or social use; there was never any intention to sell it. He was inexperienced in dealing with marihuana, and he has never been involved in commercial traffic in any drugs. The defendant's sincere desire to avoid a repetition of this crime is not in doubt. In point of fact, he is presently under voluntary psychiatric care in an effort to prevent a recurrence of this offense.

 At the time sentence was imposed, this Court believed that the benefits of the Youth Corrections Act were not available to this defendant because at the time of sentence he was twenty-six years of age. 18 U.S.C. §§ 4209, 5010(a). For this reason the Court refused to sentence the defendant as a young adult offender without prejudice to the bringing of a motion for correction of sentence. Rule 35, Federal Rules of Criminal Procedure. That motion has now been made.


 This Court was incorrect in its belief that the Youth Corrections Act does not apply to a young person who has passed the age of twenty-six at the time of sentence.

 Section 4209 of title 18, United States Code, permits application of youthful offender provisions to defendants who have "not attained [their] twenty-sixth birthday at the time of conviction." The term "conviction" is not defined in section 4209 or in the statute enacting that section. 72 Stat. 845 (1958). Some other source must be sought to give meaningful content to this word.

 The Youth Corrections Act was adopted in 1950. 64 Stat. 1086 (1950). It provides for special treatment for offenders under the age of twenty-two, with a view toward possible rehabilitation. Eight years later, these provisions were extended to young adult offenders by 18 U.S.C. § 4209. 72 Stat. 845, § 4 (1958). This section specifically incorporates the Youth Corrections Act by reference, extending its provisions to those between the ages of twenty-two and twenty-six.

 In light of the integration of the section providing for young adult offenders (18 U.S.C. § 4209) into the Youth Corrections Act (18 U.S.C. §§ 5005-5024), the words used in the two statutes should be accorded the same meaning. "Conviction" is defined in the Youth Corrections Act as "the judgment on a verdict or finding of guilty, a plea of guilty, or a plea of nolo contendere." 18 U.S.C. § 5006. This language would seem to indicate that one who has reached the age of twenty-six at the time of sentencing would not come within the terms of 18 U.S.C. § 4209, since, ordinarily, there is no "judgment" until after sentence. Rule 32(b), Federal Rules of Criminal Procedure.

 This result, however, does not comport with either the design of Congress or the practical administration of criminal justice by the federal courts. One reason for treating youths less severely is our assumption that young people are less formed morally and less able to withstand temptation than those who are more mature. In deciding on degrees of punishment, therefore, we can assume that Congress was concerned with measuring penalties by looking to age at the time the crime was committed or the plea taken rather than at the time of sentence. Additionally, we might expect Congress to intend that the courts and probation services be placed under no unnecessary time pressures to cut short investigation, consultation and reflection when determining penalties. It would be unfair to both court and defendant if sentencing procedures designed to protect created the necessity of a harsher sentence because a critical birthday was celebrated during the court's rumination. The need for deliberation in sentencing procedure is particularly important in federal courts since there is normally no appeal from the terms of a sentence.

 While its decision dealt with those under twenty-two, the language of the court in United States v. Carter, 225 F. Supp. ...

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