(concurring) :
I concur in the judgment of the court affirming the conviction. The claimed violation of a right to a minimum sentence is without merit, as Judge Harvey’s opinion points out. The remaining contentions, relating to the powers of the Parole Board to petition the court for a reduction of sentence and to discharge the prisoner completely from supervision, do not warrant reversal. However, I would not dispose of these arguments in the same way as the majority does in its opinion.
Appellant urges that the failure to extend various parole provisions of the D. C.Code to cover his case amounts to a denial of equal protection, requiring reversal. His is really a three-step argu*478ment that depends for its success upon all three steps. The argument runs as follows: (1) sections 24-201c and 24-204(b) do not apply to him; (2) since they do not, there is a constitutional deprivation; (3) accordingly, the conviction must be reversed.
Whatever the merit of the first two propositions, the third fails. For, even if we agreed with appellant as to (1) and (2), that the above parole provisions do not apply to him and that he is thereby denied equal protection, he would still stand validly convicted. One could terminate the discussion at this juncture. However, the questions raised by appellant — whether the statutory provisions apply to his case — may shortly become important to him as well as to other prisoners. Because these are not issues easily susceptible to judicial review, Bozell v. United States, 199 F.2d 449 (4th Cir. 1952, I deem it necessary at this time to make clear that the majority has not decided that the statutes are not applicable and to express my view that they most definitely are.
The majority decides this case by seizing on the second element of appellant’s argument, the constitutional one. Avowedly, the prevailing opinion leaves open the first, the statutory, question, despite time-honored principles of judicial decision-making which dictate that statutory issues be resolved first in order not to reach constitutional issues needlessly. See United States v. Bradley, 418 F.2d 688 (4th Cir. 1969), and the authorities there gathered. I would decide the statutory issues and declare that sections 24-201c and 24-204(b) do apply to Horton.
In his vain effort to construct some claim of reversible error for the purpose of his present appeal, appellant has taken the anomalous position that the statutory provisions, sections 24-201c and 24-204 (b), do not reach him. But we are not bound by the strategy he adopts in the present proceeding nor by the Government’s acquiescence.
Sections 24-201c and 24-204(b), which grant powers to the Board of Parole “for the penal and correctional institutions of the District of Columbia,” (§ 24-201a) would seem, without question, to apply to appellant who is confined in Lorton which beyond a doubt is a D.C. prison. Indeed, this is the basic premise of the present prosecution.
There is no indication of a congressional design to exclude Lorton prisoners convicted under section 22-505 from the ambit of the D.C. parole scheme. The 1965 revision of section 22-505 brought Lorton prisoners charged with assault on an officer under the coverage of the D.C. law with its five year maximum penalty. Previously, they were liable under the cognate general federal law which prescribes a maximum of three years. The purpose of the 1965 amendment to section 22-505 was to harmonize the treatment of all prisoners in custody of the District of Columbia, whether or not actually located within its territorial bounds. When Congress put Lorton prisoners under the D.C. law with the possibility of stiffer sentences than the court in the Eastern District of Virginia could impose under the general federal statute, it did not indicate that it meant to deny those prosecuted under the D.C. law the benefit of the accompanying possibility of leniency which is available to other District of Columbia prisoners.
If the court simply made it clear that the parole provisions apply, then the constitutional issue would evaporate. In light of the fact that Congress apparently did not contemplate a difference in treatment, I would not reach out to sustain its constitutionality. Such restraint is particularly appropriate where the constitutional proposition is not free from doubt.
Of course geographical factors may be sufficient to justify differences in treatment. Congress may, constitutionally, adopt differing substantive law to cover D.C. and general federal prisoners. But that is beside the point. Whether Congress could create still a third class of convicts — D.C. detainees incarcerated outside of D.C. who are liable to more severe penalties than either of the other *479classes of prisoners — is, in my view, another question. Under the proposed rationale, Horton could receive general federal treatment for some aspects of his sentence, and D.C. treatment for others. There may be reasons to support such a bifurcated practice but geographical considerations by themselves cannot provide the basis. Alone, the geographical factors would seem to demand either one course or the other, not the hybrid.
In other words, I do not think that Congress, even if it clearly expressed an intention to do so, could be allowed to speak out of both sides of its mouth. If Congress relies on the fact of D.C. custody to justify harsher treatment than for general federal prisoners, then it must be held to that reliance. It cannot then turn around and utilize the fact of the extra-D.C. location of the prison to justify harsher treatment than for other D.C. prisoners. The hair must go with the hide.
For me this is a most difficult constitutional question and one which is readily avoidable. The better course would be to declare that the parole opportunities of the D.C.Code, sections 24-201c and 24-204 (b), do apply to appellant.