(concurring in the result):
While I agree that the case must be remanded for resentencing, I diverge from the approach of the majority in certain significant aspects.
I begin with the sentencing transcript. Before imposing sentence, the trial court made the following statements:
The recommendation of it [the evaluation report prepared according to 18 U.S.C. § 5010(e)] is that this Defendant be sentenced as an adult. The Youth Center recommended that the sentence would be of shorter [sic] duration as possible under the statute. The Board of Parole concurs with the recommendation of the Youth Center staff that the subject be sentenced under adult procedure, but does not recommend a short sentence. They find that the history of his activities is demonstrative of social disorganization and the reports indicate impulsive action and a sophisticated criminally oriented individual for whom the programs at the Youth Center are of dubious value and will not serve as there is an evident lack of amenability and motivation. (Sent. Tr. 2-3.)
The Court, finding that this Defendant is criminally oriented, sophisticated in *791the ways of the criminal world, and that he has for a long period of time engaged in criminal activities, that he has on prior occasions had the benefit of probation, that he has not responded to the attempts that have been made in the past; the Court further finds that the Youth Center, itself, has evaluated him and finds that he is not an appropriate person for the benefits of the Act and feels that he should not be sentenced under the terms of the Act; and the Court further finds that the Probation Office also finds that the Defendant is in need of a program more structured than that which is offered by the Youth Center and that the Board of Parole, likewise, concurs in these findings and recommends sentence as an adult. This Court is of the opinion that in view of the fact that the Youth Center, itself, has indicated that sentencing him as a youth would not be the proper procedure and that they would not be able to supply the needs that he has; and although the Court recognizes that mere incarceration may not be rehabilitative, nevertheless, the Court has no alternative under the statute. (Sent. Tr. 4-5.)
I think it most unlikely that the last sentence meant that the court deemed itself legally required to make a finding that the defendant would not benefit from Youth Corrections Act treatment. Indeed, I think it most probable that the trial judge meant that in view of the findings of the Lorton Youth Center the .case was overwhelmingly clear, that he had no realistic alternative. This reflected not an abdication of discretion, but an exercise of judicial discretion — to make a determination on the record.
We are dealing with a transcript of oral remarks, not a written opinion. For example, at one point the trial judge referred to the Youth Center’s recommendation “that the sentence would be of shorter duration as possible” while its exact words were “The recommendation that would best fit his needs is considered to be sentencing as an adult, with the shortest term possible for his charge.” But I cannot say that there is no doubt whatever as to the premise or intention of the trial judge. The doubt is slight, even minimal. Ordinarily, in such a case an appellate court may remand for clarification of findings of a District Court. In this area of Youth Corrections Act sentencing, however, the Supreme Court has laid it down in Dorszynski v. United States1 that “an express finding of no benefit must be made on the record”.2 In Dorszynski, the Supreme Court reversed a ruling of the appellate court that the district court had made the finding “by implication,” and held that a remand for resentencing is required when it is “unclear” whether the District Court’s wording “meant the court believed petitioner to be legally ineligible for treatment under the Act or whether, realizing he was eligible, nevertheless deliberately opted to sentence him as an adult.” Chief Justice Burger explained: “An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised.”3
While the problem before us is not precisely the same as that created by the wording of the trial judge in Dorszynski, Dorszynskis stress on the importance of removing “all doubt” teaches me that even a scintilla of doubt occasions a remand for resentencing, not as time-consuming as a remand for retrial, yet looming large in significance.
I disagree with so much of the majority’s analysis as rests on the premise that the trial judge was the victim of misinformation. He was well aware that he had no authority to impose a sentence less than the one that he imposed, twenty years to life imprisonment. He was aware too of the legally futile quality of the classification board’s expression that *792the defendant be given the least adult sentence possible. But he was aware of the fact that its conclusion was not made dependent on a short sentence. And if he wanted to test whether the classification board . would have adhered to its conclusion even though it had to recognize explicitly that no adult sentence of less than twenty years was possible, he had the means to accomplish this.
Dorszynski teaches that, however short-sighted a district judge may be in the view of the appellate court, the court has neither the power to revise the sentence, nor the authority to insist that the district judge provide a statement of reasons. While Dorszynski does permit some appellate consideration, as pointed out in United States v. Allen, 166 U.S. App.D.C. -, -, 510 F.2d 652, 653 (1974), I think the fair implication of the Supreme Court’s opinion is to inhibit appellate review of district court judgments for the purpose of discerning shortcomings in underlying reasoning — and that is essentially what the majority opinion reflects.
Part IY of the court’s opinion contains material of much interest. I do not agree, however, that the doctrine of judicial notice can be stretched to pick up testimony in other cases, on the working of the Youth Center in its reports, as establishing factual material available to the appellate court to undercut an adult sentence for the youthful offender in this case. An appellate court may, on occasion, “in the interest of justice, and to provide sound disposition of precedential questions of law,” refer to factual items lodged by the parties, though not part of the record — “where there is no significant factual issue.” United States v. Kearney, 136 U.S.App.D.C. 328, 331, 420 F.2d 170, 173 (1969). The court sees fit to take judicial notice of the testimony presented in United States v. Norcome, 375 F.Supp. 270 (D.D.C.1974), and United States v. Tillman, 374 F.Supp. 215 (D.D.C.1974). I think this is impermissible where the material was not lodged, submitted or suggested by any party, and is indeed used to introduce a claim not made by a party; where we gave no opportunity to the Government to comment, contradict or qualify; and where we certainly have no basis for saying there is no significant factual issue. If an administrative agency were to use the concept of judicial notice in such a manner, this court would indignantly condemn the action as arbitrary.4 The French proverb puts it that in the realm of the blind, a one-eyed man can be king. But for an American judge true vision and the full perspective of the scene must abide the adversary process.
While judges may, using due procedure, attend to concerns sparked or identified by the testimony in Norcome and Tillman, our appellate court should, in my view, confine itself to ruling that, in complying with our mandate of resentencing, the District Judge is free to make the kind of inquiry that other district judges have found useful — without any intimation that it is an inquiry that may be required as a matter of law.
. 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974).
. Id. at 3044.
. Id. at 3053.
. See Public Service Commission of New York v. FPC (Texas Gulf Coast Area Natural Gas Rate Cases), 159 U.S.App.D.C. 172, 198-200, 487 F.2d 1043, 1069-1071 (1973), vacated and remanded, 417 U.S. 964, 94 S.Ct. 3167, 41 L.Ed.2d 1136 (1974).