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UNITED STATES v. COLAMARCO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK


December 24, 1970

UNITED STATES of America
v.
Jorge P. COLAMARCO, Defendant

Bartels, District Judge.

The opinion of the court was delivered by: BARTELS

MEMORANDUM-DECISION and ORDER

BARTELS, District Judge.

 The question here presented is whether 26 U.S.C. § 7237(d) precludes this court from sentencing a defendant under § 5010(b) of the Youth Corrections Act, 18 U.S.C. Chap. 402 ("Act").

 Jorge P. Colamarco, a twenty-one year old defendant, pleaded guilty to an indictment charging him with the illegal importation of cocaine in violation of 21 U.S.C. §§ 173 and 174, which carries with it a mandatory penalty of not less than five or more than twenty years imprisonment plus a potential fine of not more than $20,000. However, upon violation of § 174, neither suspension of imposition or execution of sentence nor probation nor ordinary parole is available to the defendant. This prohibition appears in 26 U.S.C. § 7237(d), the pertinent portion of which reads as follows:

 

"Upon conviction --

 

(1) of any offense the penalty for which is provided in * * * subsection (c) * * * of section 2 of the Narcotic Drugs Import and Export Act, as amended [codified as 21 U.S.C. § 174] * * * the imposition or execution of sentence shall not be suspended, probation shall not be granted and in the case of a violation of a law relating to narcotic drugs, section 4202 of title 18, United States Code, and the Act of July 15, 1932 (47 Stat. 696; D.C. Code 24-201 and following), as amended, shall not apply."

 There is no doubt that, under the express provisions of § 7237(d), the defendant cannot be sentenced under § 5010(a) of the Act, which authorizes suspension of imposition or execution of sentence or probation of a qualified youth offender. United States v. Lane, 284 F.2d 935 (9th Cir. 1960); United States v. Gibbs, 285 F.2d 225 (9th Cir. 1960). The problem arises in connection with the application of § 5010(b) of the Act. In essence, this section, along with § 5017(c), authorizes the court to sentence a qualified youth offender to the custody of the Attorney General for treatment and supervision under the Act and provides that the youth offender 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. Thus, § 5010(b) provides special rehabilitative treatment coupled with an indeterminate commitment not to exceed four years, which it might be argued is a form of parole.

 Notwithstanding the provisions of § 7237(d), the court finds that a sentence under § 5010(b) of the Act is permissible. The reason for this conclusion is that § 7237(d) does not in express terms render inapplicable all froms of parole or indeterminate sentences or the release provisions of the Act. In fact, the application of § 7237(d) is limited in this respect to two specific statutes, 18 U.S.C. § 4202 and D.C. Code 24-201 et seq. *fn1" We may disregard the latter statute because it is obviously inapplicable in this case. The pertinent portion of the former section reads as follows:

 

"A Federal prisoner, other than a juvenile delinquent or a committed youth offender, * * * serving a definite term * * * may be released on parole after serving one-third of such term or terms * * *." (Emphasis supplied.)

 A "committed youth offender" does not fall within the purview of 18 U.S.C. § 4202 as one who may be released on parole after serving one-third of a definite term. The patent reason for this exception is that the Act provides for an indeterminate sentence and different conditions of release. A "committed youth offender" is defined in 18 U.S.C. § 5006(f) as "one committed for treatment hereunder to the custody of the Attorney General pursuant to section 5010(b) and 5010(c) of this chapter." Hence § 7237(d) offers no impediment to the application of § 5010(b) to otherwise qualified youth offenders who have violated 21 U.S.C. § 174. Accord, United States v. Lane, supra.2

 The enactment of 18 U.S.C. § 4209 two years after the enactment of § 7237(d) buttresses this conclusion. Section 4209 (together with § 7 of Pub. L. 85-752, 72 Stat. 845 (1958)) provides, in essence, that a "young adult offender", i.e., a defendant between the ages of 22 and 26 years at the time of conviction, may be sentenced under the Act unless the offense is one for which there is provided a mandatory penalty. *fn3" At that time no such limitation concerning mandatory penalties was enacted to foreclose the operation of § 5010(b) or (c) of the Act to youth offenders under the age of 22 years although Congress had before it the possible application of these sections to youth offenders over 22 years. *fn4"

 If § 7237(d) precluded the application of the Act to all offenses for which a mandatory penalty had been provided, it would have been unnecessary and super-fluous to enact the mandatory penalty proviso with respect to § 4209.

 The court concludes that it had authority to sentence the defendant under § 5010(b) of the Act.

 So ordered.


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