On Rehearing En Banc.
McGOWAN, Circuit Judge:
In this appeal from the denial by the District Court of appellant's motion for collateral relief under 28 U.S.C. § 2255, the court en banc addresses the single issue of the retrospective reach of Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).
I
In 1960 appellant, then an inmate of the National Training School for Boys, assaulted a guard in an attempt to escape, and was indicted for first degree murder. Juvenile Court jurisdiction was waived, and appellant pleaded guilty in the District Court to manslaughter. On March 10, 1961, he came before the court for sentencing. Since he was then 15 years of age and therefore eligible for sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5010, his counsel requested that he be considered for sentencing under that statute. After observing that youth "is not a mitigating circumstances" so far as the crime in question was concerned, and that appellant and his co-defendant were "really murderers" who had been allowed to plead guilty to a lesser charge, and who had prior bad records, the judge denied counsel's request in these terms:
Now, obviously this is not a case for the Youth Corrections Act, both because of the nature of the offense and the nature of the prior records of these defendants. The court is more interested in the fate that befell the guard than it is in the future of these two boys.
* * * * * *
Now, Brackett has shown vicious tendencies. In addition to plotting the escape plan involved in this case, after he pleaded guilty he tried to escape from the
Marshal's van. He needs incarceration in a maximum security institution.
An adult sentence of 5 to 15 years was thereupon imposed; and no appeal was taken.
On December 10, 1969, appellant filed in the District Court a pro se motion under § 2255. Although counsel was appointed for him, no action of any kind appears to have been taken until 1974 when appellant pro se filed a second § 2255 motion in this court. That was returned to appellant with notification that the District Court was the proper place for filing. When he again submitted his motion to this court, it was referred to the District Court for disposition, where it was denied without a hearing as raising no meritorious issue. A division of this court affirmed without opinion.
Although a number of issues had been raised in the District Court and on appeal, appellant's petition for rehearing and suggestion for rehearing en banc asserted only that appellant had been improperly denied Youth Corrections Act treatment because there had been no express finding, as required by Dorszynski, that appellant would derive no benefit from such treatment. Because of our concern that, as alleged by appellant, divisions of this court may not have been applying Dorszynski uniformly, the appeal was placed en banc, as our order stated, "for the purpose of considering whether ( Dorszynski) shall be applied retroactively . . ."
II
The requisite manner of implementation of § 5010(d) of the Youth Corrections Act had heavily engaged the attention of this court prior to Dorszynski. That section provides that an adult sentence may be imposed "[I]f the court shall find that the youth offender will not derive benefit from treatment" under the alternatives provided by the Act. In United States v. Waters, 141 U.S.App.D.C. 289, 292, 437 F.2d 722, 725 (1970), we said that the sentencing judge's discretion to impose an adult penalty "is circumscribed by the findings of fact in the individual case which the District Judge is required to make either explicitly or implicitly." (Emphasis supplied). And this necessity of an affirmative finding of no benefit, albeit in either express or implied terms, was reasserted by this court in United States v. Ward, 147 U.S.App.D.C. 149, 454 F.2d 992 (1971).
Those alternatives are three in number. One is probation (Section 5010(a)). A second (Section 5010(b)) is commitment to the custody of the Attorney General for treatment and supervision pursuant to the Act, in which event § 5017(c) provides that the defendant must be conditionally released under supervision within four years, and unconditionally discharged within six years. The third (Section 5010(c)) is, upon a finding that maximum benefit from YCA treatment may not be derived within six years, commitment to the custody of the Attorney General for any further period otherwise authorized by law for the offense in question. In this third alternative, Section 5017(c) requires that there shall be conditional release under supervision not later than two years prior to expiration of the term imposed, with unconditional release possible within one year thereafter; and unconditional discharge in any event must occur on or before the expiration of the maximum sentence imposed, computed uninterruptedly from the date of conviction. Sections 5017(a) and (b) provide that any committed youth offender may be released at any time under supervision, and may be unconditionally discharged at the expiration of one year thereafter.
A youth offender is defined by the Act as a person under 22 years of age at the time of conviction. The Young Adult Offenders Act, 18 U.S.C. § 4209 (1970), provides that a defendant aged 22 to 26 may be sentenced under the Youth Corrections Act if "the court finds that there is reasonable grounds to believe that the defendant will benefit" therefrom.
In United States v. Coefield, 155 U.S.App.D.C. 205, 476 F.2d 1152 (1973), we examined the issue en banc. The result of that inquiry was a holding that the finding of no benefit must be explicit and not left to implication, together with the addition of a new requirement that the judge making such a finding must state the reasons which impelled him to do so. Dorszynski dispensed with this enlarged requirement of the articulation of reasons, but, as we had done in Coefield, held that the no-benefit finding must be explicit rather than implicit. In this latter regard, the Supreme Court stopped short of saying that the finding must track the statute in haec verba, but it did say (418 U.S. at p. 444, 94 S.Ct. at p. 3053) that the required quality of explicitness must be imparted by language "that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act."
When the present appeal was before a division of this court, the issue was joined in terms of whether the sentencing judge in fact met the standards subsequently set in Dorszynski. Appellant continues en banc to assert that the judge gave no consideration whatever to the possibility of affording appellant Youth Corrections Act treatment. This argument is not literally germane under the terms of our en banc grant, but the varying doctrinal development that has occurred over time in this court prompts us to take note of the situation as we see it.
The record reveals that the sentencing judge was clearly aware of the Youth Corrections Act and of appellant's eligibility as a matter of age for disposition under it. The comments made by him seem to us of such a nature as to constitute an implicit finding of no benefit within the meaning of the relevant statutory provision, and of our later interpretation of it in Waters and Ward. They were not, in our view, adequate to meet the higher standards of explicitness prescribed by this Court in Coefield, and more importantly by the Supreme Court in Dorszynski. These premises, are, thus, the point of departure for our consideration of the retroactivity issue framed by our en banc order.
The sentencing judge's extensive references to (i) the serious nature of the assault, (ii) the prior criminal involvement of appellant, and (iii) appellant's attempt to escape, are both relevant to, and supportive of, an implication that the court was asserting its conviction that appellant would not respond to YCA treatment and would only disrupt the program with no benefit to himself. The judge's further professions of a seeming unconcern with appellant's rehabilitation argue for a different interpretation of his ruling, but we do not find them, in the entire context, inconsistent with a no-benefit conclusion.
III
Aged 15 at the time he was sentenced, appellant is now 31. In the intervening years, the sentencing judge has died, and appellant has twice been released on parole by the federal authorities, but each parole was subsequently revoked for parole violation. Released again in 1975 to the custody of South Carolina, he is presently out on parole from a South Carolina sentence of ten years for a criminal violation in that state. In his brief en banc, appellant asserts that, in the "unique facts presented by this case," resentencing under the Youth Corrections Act could only take the form, not of exposure to rehabilitative supervision, but of a release from further obligation under his federal sentence. This, so it is said, flows from the fact that the maximum sentence that can be given under YCA equals the maximum adult sentence, and time on parole is credited even if parole was subsequently revoked. Appellant received the maximum adult sentence of 15 years, and he has already served more than 15 years if his time out on parole is credited, which it is not in respect of an adult sentence but is under a YCA sentence.
We do not pursue this question of the precise relief to which appellant might be entitled if a remand for YCA sentencing were to be ordered, except to remark that, as envisioned by appellant, it does not entail his involuntary subjection to the improving influences of the Youth Corrections Division. We think, rather, that the facts giving rise to the claim are significant only as they illuminate the policies relevant to retroactivity. Those policies have been identified by the Supreme Court as involving three factors: (1) the purpose to be served by the new standards, (2) the extent of reliance by public authorities on the old, and (3) the effect of retroactivity on the administration of justice. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
The objective of the Supreme Court in its ruling in Dorszynski was to assure that the sentencing judge will give conscious consideration to YCA treatment for youthful offenders who might, because of the very fact of their youth, be saved from a life of crime by the youth-oriented treatment provided by Congress to this end in the YCA. Congress prescribed the age limits for that particularized rehabilitative effort. Appellant has long since exceeded them, as will have many, if not indeed most, others who collaterally challenge their sentences. This court confronted a similar problem in Mordecai v. United States, 137 U.S.App.D.C. 198, 421 F.2d 1133 (1969), cert. denied, 397 U.S. 977, 90 S.Ct. 1098, 25 L.Ed.2d 272 (1970). There we refused to give retroactive application to the holding in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), in a collateral attack by a prisoner who had not been afforded the hearing required by Kent before a juvenile offender is waived for adult trial. In doing so the court noted the fact that the defendant was no longer a juvenile, and that no remedy was currently available to tap the rehabilitative potential of youth, stating (137 U.S.App.D.C. at 203, 421 F.2d at 1138) that "even if nonpunitive rehabilitation in the juvenile process would have been the proper path in 1961, society can no longer offer what was then, rightly or wrongly, denied. . . ."
The reliance interest in these circumstances is perhaps of less significance, although it is likely that the sentencing judge's action in this instance was not out of keeping with what were considered to be a sentencing judge's responsibilities at the time this sentence was imposed, and indeed as they were later defined to be by this court in Waters and Ward. The statute in question had been on the books for 24 years before the Supreme Court authoritatively prescribed the manner of its implementation. The varying and, as it turned out, not wholly successful development of implementation doctrine in our own court demonstrates the several faces which the statutory language apparently presented to individual judges, especially those charged with the traditionally awesome responsibility of criminal sentencing.
Limitations on retroactivity are not, of course, confined to constitutional holdings. See Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969). In concluding not to give retroactive application to an interpretation by it of Rule 11, Fed.R.Crim.P., McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969), the Court stated ( 394 U.S. at 832, 89 S.Ct. at 1499) that it approached the problem by reference to "the same criteria we have employed to determine whether constitutionally grounded decisions that depart from precedent should be applied." And see Judge Leventhal's useful discussion of the concept of reliance in his concurring opinion in Mordecai, supra.
With respect to the effect upon the administration of justice, there are obvious problems in deciding anew the delicate question of susceptibility to YCA treatment many years — in this case, 16 — after the initial sentence. Not infrequently, as here, the sentencing judge will no longer be available. The task of recreating the conditions under which the first sentence was imposed holds the threat of more administrative burdens on a criminal justice system that is already overloaded. And surely those charged with the intensely important work of trying to save truly youthful offenders from blighted lives will not be aided by the prospect of the appearance among their charges of persons who have matured beyond the statutory age limits in a criminal environment.
As an appendix to his brief en banc, appellant has supplied some Administrative Office figures as indicating that the number of persons likely to benefit from full retroactivity for Dorszynski is not such as to create apprehensions about burdening the criminal justice system. The figures on their face are not impressively supportive of appellant's point, since they reveal very substantial numbers of defendants in the period from 1965 to 1972 receiving adult sentences despite their age eligibility for YCA. This presumably reflects the growing national concern about the participation by young people in serious crime.
There comes a time, in the criminal law as elsewhere, where the more remote past can not be set to rights in response to late-blooming legal doctrine, at least not without impairment of other vital interests. This is such a case, and because we believe it to be characteristic of those that will arise on collateral attack, we state our judgment to be that the retrospective operation of Dorszynski shall, in respect of sentences imposed prior to the issuance of our decision in Coefield, be restricted to direct appeals arising therefrom. This differentiation of direct appeals from collateral attacks is one that has heretofore been recognized by this court as justifiable in appropriate circumstances. See Pendergrast v. United States, 135 U.S.App.D.C. 20, 26, 416 F.2d 776, 782, cert. denied, 395 U.S. 926, 89 S.Ct. 1782, 23 L.Ed.2d 243 (1969), and cases therein cited. We think the circumstances presented by this record warrant its utilization in the area addressed today by this court en banc.
We use Coefield as the measuring date for the reason that Coefield made it the law of this circuit that the no-benefit finding must be explicit. Dorszynski adopted the same rule; and its invalidation of Coefield's additional requirement of the statement of reasons has no bearing on the issue immediately before us. Appellant is, of course, not helped by Coefield because his sentence occurred 12 years earlier, and there was no direct appeal.
Coming down on the side of non-retroactivity in a 2255 case is the Tenth Circuit. Jackson v. United States, 510 F.2d 1335 (10th Cir. 1975). And, in another retroactivity context, see the apparently approving reference to Jackson in Bailey v. Holley, 530 F.2d 169, 173 (7th Cir. 1976). The Second Circuit, in its en banc pre Dorszynski ruling like ours in Coefield, requiring both an explicit finding and a statement of reasons, expressly made that ruling non-retroactive. United States v. Kaylor, 491 F.2d 1133 (2nd Cir. 1973), vacated and remanded for reconsideration in the light of Dorszynski, sub nomine United States v. Hopkins, 418 U.S. 909, 94 S.Ct. 3201, 41 L.Ed.2d 1155 (1974). See also Owens v. United States, 383 F.Supp. 780 (M.D. Pa. 1974), aff'd without opinion, 515 F.2d 507 (3rd Cir. 1974), cert. denied, 423 U.S. 996, 96 S.Ct. 425, 46 L.Ed.2d 370 (1975), in which the District Court, in a carefully considered opinion, held Dorszynski non-retroactive in the context of a 2255 motion.
Our limitation of the retroactivity of Dorszynski is concededly at odds with holdings in other circuits. The latest of these appears to be McCray v. United States, 542 F.2d 1246 (4th Cir. 1976). That case involved a collateral challenge under § 2255, but the court, in a one-page per curiam, took no note of this fact, and limited its discussion to the assertion that it had "consistently remanded similar cases," citing two of its prior cases, one of which was a direct appeal in which the prosecutor had sought the remand, United States v. Bailey, 509 F.2d 881, 883 (4 Cir. 1975), and the other, United States v. Flebotte, 503 F.2d 1057 (4 Cir. 1974), was a 2255 which was remanded for resentencing in a 2-paragraph per curiam citing Dorszynski and a prior Fourth Circuit case, United States v. Ashby, 502 F.2d 1163 (table), from which, since there is no reported opinion, it is impossible to tell whether it involved direct appeal or 2255. The Eighth Circuit is also to the contrary. See Brager v. United States, 527 F.2d 895 (1975), which devotes most of its brief discussion to describing the findings which on remand will warrant dismissal of post-conviction applications. See also Belgarde v. United States, 503 F.2d 1054 (9th Cir. 1974), and Hoyt v. United States, 502 F.2d 562 (5th Cir. 1974), both of which are very brief per curiam dispositions.
The District Court is, accordingly, affirmed.
It is so ordered.