UNITED STATES v. FLEBOTTE, 503 F.2d 1057 (4th Cir. 1974)

UNITED STATES OF AMERICA, APPELLEE v. DANIEL ROY FLEBOTTE, APPELLANT.

No. 74-1016.United States Court of Appeals, Fourth Circuit.Argued September 5, 1974.
Decided September 26, 1974.

James R. Rogers, III, Raleigh, N.C., for appellant.

Jack B. Crawley, Jr., Asst. U.S. Atty., (Thomas P. McNamara, U.S. Atty., on brief), for appellee.

Appeal from the United States District Court for the Eastern District of North Carolina.

Before HAYNSWORTH, Chief Judge, and RUSSELL and WIDENER, Circuit Judges.

PER CURIAM:

[1] In this 2255, 28 U.S.C. proceeding, the appellant, who at the time of his conviction and sentencing was twenty years of age, complains of the failure of the District Court to make “explicit” findings, before sentencing under other applicable sentencing provisions, why the appellant would not have been benefited by sentencing under the Federal Youth Corrections Act, 18 U.S.C. § 5005
et seq. The District Court dismissed the petition, holding that at sentencing it had made “implicit”, though not “explicit” findings justifying failure to sentence under the Act. It is not sufficient, however, that the findings against the use of the Act in such a case as this be “implicit”; the statute, it has been held, requires “explicit” findings on the record that no benefit would result from sentencing under the Act. The order of the District Court is accordingly reversed and remanded, with directions, that the appellant’s sentence be vacated and his sentence reconsidered. Dorszynski v. United States (1974), 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855; United States v. Ashby (4th Cir. 1974), 502 F.2d 1163 (Table). [2] As we said in Ashby, however, “[A]lthough we conclude that on this record the sentence imposed was invalid, it may validly be imposed if the district court in its discretion concludes that [the appellant] would not benefit from treatment under the Act and makes that specific finding; otherwise [appellant] should be sentenced under the Act.” [3] Sentence vacated; remanded with directions.

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