The opinion of the court was delivered by: BRIEANT
Familiarity with our Court record in the companion criminal case brought against petitioner is assumed. Petitioner here seeks an order vacating his judgment of conviction pursuant to 28 U.S.C. § 2255.
It should require no authority to support the proposition that now, more than ever before, a Court requires flexibility in sentencing persons guilty of crime, and in no case is this need greater than in the case of adolescents. Another indisputable set of principles: penal statutes, including those relating to sentencing are to be strictly construed against the sovereign, and the rule of lenity is to be applied when any ambiguity is present. Justice Frank-further expressed the point in Bell v. United States, 349 U.S. 81, 83, 75 S. Ct. 620, 622, 99 L. Ed. 905 (1955):
"When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity. And this not out of any sentimental consideration, or for want of sympathy with the purpose of Congress in proscribing evil or anti-social conduct. It may fairly be said to be a presupposition of our law to resolve doubts in the enforcement of a penal code against the imposition of a harsher punishment."
With this touchstone in mind, we recite the legal difficulties of petitioner, referred for convenience, as he was in testimony given at a suppression hearing in the criminal case, as "Mr. Kay," and also discuss the construction and application of important provisions of the Youth Corrections Act.
Mr. Kay was born December 5, 1954, and on March 26, 1975 was sentenced as a youthful offender under 18 U.S.C. § 5010(b). After the issues raised on a motion to suppress his confession were resolved against him, Mr. Kay pleaded guilty on February 13, 1975 before me to a consolidated count (initially counts four and five) in a five count indictment filed April 4, 1974, which charged him with aiding and abetting an assault by use of a firearm during the commission of a bank robbery in this district, in that he furnished a pistol used by others in the commission of that crime. 18 U.S.C. §§ 2113(d) and 2.
Although Mr. Kay did not actually enter a bank, he furnished the firearm and aided and abetted, counselled and procured the commission of crime, under conditions evidencing criminal conduct of a fairly serious nature. He had no prior criminal record, and his situation presented an almost classic need for rehabilitation and treatment, and an opportunity to achieve the purposes of the Youth Corrections Act, which are considered to be primarily rehabilitative.
Accordingly, the Court initially imposed an indeterminate sentence under 18 U.S.C. § 5010(d). Thereafter, Mr. Kay moved for a "reduction" of sentence, which the Court granted by Memorandum Endorsement, dated September 9, 1975, which read as follows:
"Guidelines applied to the indeterminate sentence under 18 U.S.C. § 5010(b) imposed on this Youth Offender suggest that, with 'good institutional program performance and adjustment' he will serve between 20 and 27 months. The Court regards this as excessive, yet believes this youth still needs 'additional institutional treatment, specifically counseling' [quotations are from Parole Form H-7(a) dated July 16, 1974 filed herein].
Under all the circumstances, the Court believes movant is entitled to some amelioration of sentence upon his Rule 35 motion, but should not be released at this time. Sentence is reduced, and defendant resentenced as a Youthful Offender pursuant to 18 U.S.C. § 5010(d) to a term of fifteen (15) months.
The effect of this resentencing was to continue petitioner in the status of a Youthful Offender, entitled to seek a certificate setting aside his conviction under 18 U.S.C. § 5021, but reducing his term of confinement to 15 months in order to evade the U.S. Parole Board Guidelines, which the Court regarded as excessive.
It is preposterous to suggest that the net effect of the indeterminate provisions of § 5010(b), taken together with the Guidelines subsequently imposed by the Executive Branch of Government, prevent this Court from sentencing a Youthful Offender as such, when his situation is too serious to justify probation under § 5010(a), but not serious enough to justify imprisonment for the full period of the guidelines, in Mr. Kay's case 20 to 27 months. The applicable Guideline is keyed primarily to the nature of the act, rather than the actor. See United States v. Slutsky, 514 F.2d 1222 (2d Cir. 1975). Mr. Kay ...