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October 8, 1975

Gregory M. CHANDLER, Petitioner,
UNITED STATES of America, Respondent

The opinion of the court was delivered by: BIUNNO

 Chandler is a federal prisoner, sentenced in this court to a term of 6 years, and eligible for parole at such time as the board of parole may determine, under 18 U.S.C. § 4208(a)(2). He was indicted for 3 separate bank robberies with intimidation (threat to kill with a gun) in violation of 18 U.S.C. § 2113(a), which carries a maximum penalty of 20 years imprisonment, a $5,000. fine, or both. The robberies were charged to have occurred at 3 different banks on 3 different dates while on parole from a 5-year sentence for larceny. Chandler pleaded guilty to Count 1, and the other counts were dismissed at sentencing in accordance with plea negotiations.

 He has sent papers directly to the court, and although irregular in form their tenor clearly indicates an intent to make a motion under 28 U.S.C. § 2255. The clerk has been directed to file them without prepayment of fee, in forma pauperis.

 Chandler's objection to the sentence is grounded on Dorszynski v. U.S., 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974). In that case the court ruled that while the Youth Corrections Act (18 U.S.C. §§ 5005-5026), which applies to persons under age 22 at the time of conviction (i. e., at sentence), does not in any way restrict the discretion and flexibility of a trial court to sentence under either that act or as an adult, the trial court must consider that option and in fact exercise its discretion in order to make certain that the option is not overlooked. The performance of this function is to be evidenced by an explicit finding that the defendant will not derive benefit from treatment under 18 U.S.C. § 5010(b) or (c).

 As the court's opinion discloses, reliance on a finding which is implied from what was done is unsatisfactory from the standpoint of appellate review, since that approach would involve the further step of appellate determination of what elements constitute a sufficient showing of an implied finding.

 The minority opinion agreed with the result, but was of the view that in addition to the finding of "no benefit", the trial court should also be required to set out the reasons for the finding.

 The issue raised involves another in a series of rulings by appellate courts in regard to matters of procedure and practice in the trial courts. The subject is not dealt with in the Rules of Criminal Procedure, either as they stand or as revised to take effect December 1, 1975. The pending bill to revise the criminal code and the rules of criminal procedure, S. 1, introduced January 15, 1975, does not appear to address this question at all (there is no parallel reference table to assist in checking existing statutes affected, but a review of the bill's 753 pages discloses no reference to the Youth Corrections Act, although juvenile delinquency is dealt with in Chapter 36).

 In approaching the question raised, the court has begun with a consideration of the scope of the motion, as indicated by Congress in 28 U.S.C. § 2255. Under that section, the first step is to examine the point at issue in the light of three sources: (1) the motion, (2) the files of the case and (3) the records of the case. If those sources conclusively show that the prisoner is entitled to no relief, that is the end of the matter and the motion is denied. If those sources do not so show, then notice is to be given to the U.S. Attorney, a hearing granted, and the issues determined with findings of fact and conclusions of law.

 From a review of these three sources, it is conclusively shown that Chandler is entitled to no relief, and the motion will be denied. The material on which this finding rests is as follows:

 1. The files of the court include the presentence report, and a sentence sheet which the court prepares when it reviews the report, and which it uses in its conference with the probation office, before sentence.

 2. The sentence sheet contains spaces for favorable and unfavorable data, a tentative choice of sentences, the recommendation made at the conference with the probation office, additional factors related to sentence, and then the decision as to sentence.

 3. The entry in the files for tentative sentence shows: " 18 USC 5010: 4 to 6 under (b); more than 6 under (c). Or 18 U.S.C. 2113(a), 8 yrs."

 4. The entry under recommendation shows "6 yrs 4208(a)(2)."

 5. The entry under additional factors shows "Needs to be shaken up. Has not learned tho will be 22 in April. DK what will be done on parole violation (N.J.). Can't get drugs in prison. ...

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