The opinion of the court was delivered by: COOPER
The petitioner moves pro se pursuant to 28 U.S.C. § 2255 to vacate his sentence on the ground that at the time sentence was imposed we failed to find that he would derive "no benefit" from sentencing under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026. For the reasons discussed herein, we deny petitioner's application in its entirety.
On November 14, 1966 the petitioner pled guilty to one count of conspiracy to commit bank robbery (18 U.S.C. §§ 2, 2113) and to one substantive count of assault with a deadly weapon in the course of robbing a bank (18 U.S.C. § 2113(d)). By reason of his plea petitioner in effect admitted being the gunman in a robbery of the Tremont Savings & Loan Association, Bronx, New York, in which over $20,000 was taken (see Official Minutes, January 5, 1967, at 11). This court sentenced petitioner on January 5, 1967 to a term of twelve years on the substantive count, with the proviso that he would be eligible for parole at such time as the Board of Parole should determine, 18 U.S.C. § 4208(a)(2). We suspended execution of sentence on the conspiracy count and placed the petitioner on probation for one day. With the benefit of a full presentence report, and other reliable material before us, it was our considered decision not to sentence petitioner pursuant to provisions of the Youth Corrections Act under which he was eligible.
Petitioner sets forth in his moving papers the following claims: that at the time of sentencing he was nineteen years old; that at no time did the court explain to him that he was eligible for sentencing pursuant to the Youth Corrections Act; and that the court made no finding as to whether he might benefit from sentencing under that program.
28 U.S.C. § 2255 provides to a prisoner, in federal custody by reason of a judgment, the right to move the sentencing court for relief where it appears that "the sentence was imposed in violation of the Constitution or laws of the United States . . .." We would be duty bound to grant petitioner's request were we to find that the sentence as imposed by this court was illegal in any respect. After a thorough study of the files, records and transcripts relating to the sentence under attack, as well as the relevant authorities, we conclude that the sentence imposed was free of any legal infirmity.
The Federal Youth Corrections Act ("the Act") was enacted in 1950 "to make available for the discretionary use of the Federal judges a system for the sentencing and treatment of persons under the age of 22 years who have been convicted of crime in the United States Courts that will promote the rehabilitation of those who in the opinion of the sentencing judge show promise of becoming useful citizens, and so will avoid the degenerative and needless transformation of many of these young persons into habitual criminals." H.R. Rep. No. 2979, 81st Cong., 2nd Sess., reprinted in 1950 U.S. Code Cong. Service 3983.
While the Act itself served to broaden the inherently wide scope of sentencing discretion by providing judges with an optional system, the Supreme Court ruled in 1974 that to further the rehabilitative aims of the Act it was imperative that an express finding of "no benefit" be made on the record pursuant to § 5010(d) of the Act before a judge could proceed to sentence a youth offender under any other applicable provision of law. Dorszynski v. United States, 418 U.S. 424, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974).
As stated in Dorszynski, 418 U.S. at 443, "[the] requirement of the 'no benefit' finding was designed to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act."
We have studied with care the minutes of the sentencing proceeding and we note that there was no explicit finding of "no benefit" placed on the record, although the option of youthful offender treatment was mentioned in passing by defense counsel and by the court.
However, the transcript, fourteen pages in length, reveals a most careful and thorough consideration of this particular individual in light of the acts committed and the uncertain practical probabilities that he would "turn himself around" and start to rebuild his life at that time. This has been our constant practice, always mindful that justice is due both defendant and accuser (community) alike.
Our determination to deny petitioner the benefit with which we deal here was, in effect, an implicit finding of "no benefit" following a studied consideration of all factors taken into account prior to sentencing. Nevertheless, at present only an explicit finding would suffice to constitute compliance with the Dorszynski rule:
If the finding may be implied from the record, appellate courts must go on to determine what constitutes a sufficient showing of the requisite implication. To hold that a 'no benefit' finding is implicit each time a sentence under the Act is not chosen would render § 5010(d) nugatory; to hold that something more is necessary to support the inference that must be found in the record would create an ad hoc rule. Appellate courts should not be subject to the burden of case-by-case examination of the record to make sure that the sentencing judge considered the treatment option made available by the Act. Dorszynski, 418 U.S. at 443-44
The personality profile revealed by petitioner at time of sentence
Indictment : Count I: That petitioner and two co-defendants "unlawfully, wilfully and knowingly did . . . conspire . . . with each other . . . by force and violence and by intimidation, would take . . . money . . . in the care . . . and possession of the Tremont Savings and Loan Association, . . . Bronx, New York . . . and with intent to steal . . . would take money . . . in possession of the [Association] . . . further a part of said conspiracy . . . the defendants, in committing the offenses described . . . would assault and put in jeopardy the lives of persons by the use of a dangerous weapon . . . a revolver."
Count II: Petitioner and co-defendants ". . . by force and violence and by intimidation did take from . . . Salvatore L. Pannullo money in the approximate amount of $20,680 . . . in the care and possession of the . . . Association . . .
Count III: Petitioner and co-defendants . . . "with intent to steal and purloin, did take and carry away money in the approximate amount of $20,680 . . . in possession of the . . . Association . . .
Count IV: Petitioner and co-defendants "in committing . . . the offenses . .. did assault and put in jeopardy the life of . . . Pannullo by the use of a dangerous weapon . . . a revolver."
On November 14, 1966 petitioner entered a plea of guilty to counts 1 and 4. Subsequently, counts 2 and 3, on consent of the litigants and with Court approval, were dismissed.
Details of the offense : Ferguson's version coincided in all respects with the following official recital except that he stated he used a toy pistol in the holdup and robbery:
On 8/26/66, defendants Russ, Ferguson, and Brown robbed the Tremont Savings & Loan Association, Bronx, N.Y. of $20,680. Defendants Russ and Ferguson entered the bank, Ferguson brandishing a pistol and covering the employees and customers, while Russ vaulted the tellers' counter and removed cash from 3 teller cages. Russ first filled a shoebox with loot, and then used a paper bag taken from a teller's cage.
Defendant Brown was the driver of Russ' car which was used in the robbery, a 1961 green Chevrolet with Florida license plates. The 3 men escaped in the car, went to Russ' apartment, and split the loot 3 ways.
Later, on the same day, agents of the FBI spotted the vehicle double-parked on W. 125 St., and Russ was later apprehended when he entered the car. Russ confessed to his involvement, and directed the agents not only to his apartment where his share of the loot ...