(dissenting).
I respectfully dissent. The effect of the majority decision is to condone a prison sentence in excess of the maximum of one year specified by the relevant statute.
Appellants are confined under the provisions of the Youth Corrections Act, 18 U.S.C. § 5005 et seq., for a possible six year term.1 The maximum term had they been sentenced as adults is one year in prison.2 They show that Youth Corrections Act confinement is in no way different from ordinary prison; and they argue that their six year liability under § 5010(b) therefore deprives them of due process and equal protection.
I
The majority holds that appellants may not raise that issue because they made plea bargains and pleaded guilty. Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), and Young Hee Choy v. United States, 322 F.2d 64 (9th Cir. 1963) are said to support the result “directly”; the trilogy of Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), and Parker v. North Carolina, 397 U.S. 790, 90 S.Ct. 1458, 25 L.Ed.2d 785 (1970) is also relied upon.
What Tollett and the Brady trilogy hold is that a person who convicts himself out of his own mouth may not later complain that the government, left to its own devices, would not have been able to convict him in accord with the rules. A guilty plea replaces and makes superfluous the government process of investigation and prosecution. Constitutional defects in that process are therefore irrelevant to the issue of guilt; their existence does not impugn “the accuracy of the defendant’s admission that he committed the crime.” McMann, supra, 397 U.S. at 773, 90 S.Ct. at 1450. See also, Brady, supra, 397 U.S. at 757, 758, 90 S.Ct. 1463, 25 L.Ed.2d 747. Therefore, such such defects shall not be grounds for vacating a guilty plea, voluntarily and intelligently made. Tollett, supra, 411 U.S. at 267, 93 S.Ct. 1602, 36 L.Ed.2d 235. But that reasoning, which applies to the process of proving guilt, does not apply to the process of punishing.
A guilty plea does not make superfluous the government’s duty to apply punishment in conformity with law and the Constitution; and there is nothing self-eontradicto-ry about admitting guilt and then insisting on being punished fairly. The reasoning of Tollett, which deals with constitutional attacks by a defendant on the validity of his own guilty plea, does not necessarily extend to constitutional attacks on the validity of a sentence imposed by a judge; and the majority offers no reason for such an expansive reading, though it will greatly affect *651the rights of criminal defendants who plead guilty.
Moreover, Tollett does not apply in terms. The opinion explains that “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process,” 411 U.S. at 267, 93 S.Ct. at 1608 (emphasis added), and it clearly limits the waiver inherent in a guilty plea to “claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id. (emphasis added). See also 411 U.S. at 265-66, 93 S.Ct. at 1607. Without explanation, the majority here extends the Tollett principle to constitutional claims arising from the process of punishment, which takes place after the guilty plea and conviction — after the “break in the chain.”
The majority opinion lays emphasis on the fact that both appellants engaged in plea bargaining. This, of course, is the case in the great majority of persons who enter guilty pleas. Cf. Brady, supra, 397 U.S. at 751-52, 90 S.Ct. 1463, 25 L.Ed.2d 747; Tollett, supra, 411 U.S. at 261-64, 93 S.Ct. 1602, 36 L.Ed.2d 747. It does not offer an independent ground for finding waiver. The majority seems to feel that, as part of a plea bargain, a defendant may agree to be subjected to an unconditional sentence. I can see no reason in law, and no advantage to any side, in allowing such bargains.
Young Hee Choy, supra, the other case relied on in the majority opinion, deserves brief discussion. In Young Hee Choy, the defendant raised a constitutional challenge similar to appellants’ here. The court did not find waiver, but reached the constitutional issue on the merits, rejecting it on the basis of Cunningham v. United States, 256 F.2d 467 (5th Cir. 1968), and Carter v. United States, 113 U.S.App.D.C. 123, 306 F.2d 283 (1962). See, 322 F.2d at 66 and n. 7.
Even if the majority were right to extend Tollett to constitutional challenges arising from punishment, there would be an additional reason in this case not to find waiver. A waiver of constitutional rights must be knowingly and intelligently made. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). When it comes as a result of a guilty plea it must be made “with understanding of . the consequences of the plea.” Fed.R.Crim.P. 11. Appellants Leming and La Rue both understood that they could be sentenced to up to six years of confinement under the Youth Corrections Act.3 But they had no way of *652knowing the crucial fact upon which they now base their challenge: That confinement under the Act is no different from prison. The assumption of the Act’s draftsmen,4 of the cases upholding the constitutionality of § 5010(b),5 and presumably of the trial judges below6 was that Youth Corrections Act confinement would offer special conditions and opportunities which would compensate for the risk of having to spend more time than would be required under an adult sentence to prison. The facts on which appellants now rely to refute that assumption came to light over one year after they entered guilty pleas. They cannot be said to have understood at the time of plea that they could be subject to six years in prison.
I cannot agree with the majority that, under Tollett, these appellants have waived their claim by pleading guilty. Further, I cannot agree that if a waiver took place, it was with adequate knowledge of the consequences. These appellants have standing to raise their claim and have it considered on the merits. See Young Hee Choy, supra, 322 F.2d at 65-66.
II
Although § 5010(b) calls for “treatment and supervision” in the custody of the Attorney General “in lieu of” imprisonment, the record in these two cases shows that § 5010(b) confinement and imprisonment are functional equivalents. In No. 74-2455, following Leming’s sentence, the parties agreed to a hearing to supplement the record. At that hearing, the government called as a witness Mr. James Daniel Williams of the federal Bureau of Prisons. His testimony, uncontradicted and unchallenged, established that persons under the age of 26 who are sentenced to confinement under the Youth Corrections Act find themselves treated just like other persons of similar age who are sentenced to regular prison terms for like crimes. According to his testimony, regardless of whether or not sentence is imposed under the Youth Corrections Act, the Bureau of Prisons assigns a young offender to a specific institution, offers treatment and rehabilitation opportunities within the institution, and mixes young offenders together in the general population within the institution.7 The *653only differences to which Williams testified were these: First, if a rehabilitation program in a given institution is oversubscribed, a person sentenced under the Youth *654Corrections Act has first chance at any openings;8 and second, a person sentenced under the Youth Corrections Act who turned out to be a troublemaker might go through a longer process of reassignment than a troublemaker under adult sentence before eventually being assigned to a penitentiary.9 Neither difference has been shown to apply in either case at bar.
Sentences of confinement under § 5010(b), imposed on misdemeanor offenders, have been repeatedly challenged on due process and equal protection grounds, based on the fact that the maximum term under the Youth Corrections Act is longer than the one year maximum provided for adults who commit misdemeanors. The courts have consistently rejected the argument. The leading cases are Cunningham v. United States, supra, and Carter v. United States, supra. Cunningham and Carter have been followed in this Circuit10 and in others.11 However, the central premise of every case upholding longer sentences under the Youth Corrections Act against due process and equal protection claims has been that “confinement [under 18 U.S.C. § 5010(b) ] cannot be equated with incarceration in an ordinary prison.” Carter, supra, at 285 (emphasis added). In Cunningham, the court based its holding on its observation that the Youth Corrections Act
provides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration. 256 F.2d at 472 (emphasis added).
The leading cases in this Circuit rely directly on Carter and Cunningham. See, e. g., Eller v. United States, 327 F.2d 639 (9th Cir. 1964). Each of them depends on the constitutional reasoning expressed most simply in Carter:
[T]he basic theory of [the Youth Corrections] Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison. 306 F.2d at 285.
The evidence in the cases before us shows, inescapably, that the premise of Carter and Cunningham, relied on in Eller, supra, Young Hee Choy v. United States, supra, and Standley v. United States, 318 F.2d 700 (9th Cir. 1963), is untenable. Confinement under the Youth Corrections Act today may be as rehabilitative in an absolute sense as the draftsmen intended, but the testimony of Mr. Williams makes it *655clear that such confinement is not different from ordinary prison incarceration, in its general conditions, nor in rehabilitative and corrective opportunities, nor in share of physical and psychological shocks and traumas. There is, therefore, no quid pro quo for the potentially longer confinement for these two misdemeanor offenders under the Youth Corrections Act. The only significant difference between a sentence under § 5010(b) and one of ordinary imprisonment under 21 U.S.C. § 844(a), according to Mr. Williams’ testimony, is the label. We have been alerted to the dangers of accepting uncritically the labels which government attaches to the forced confinement of citizens, particularly young ones. In re Gault, 387 U.S. 1, 27-28, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Under the current policies of the Bureau of Prisons as described by Mr. Williams, to sentence Leming and La Rue to confinement under 18 U.S.C. § 5010(b) is to sentence them to prison. To the extent their sentences may exceed one year of confinement, those sentences exceed the statutory maximum established in 21 U.S.C. § 844(a), and therefore deprive appellants of due process of law.12
Finding no waiver, I would reach the merits and conclude that, under the current policies of the Bureau of Prisons, appellants’ sentences violate the Due Process Clause of the Fifth Amendment to the extent that they may exceed one year in confinement.
. 18 U.S.C. § 5010(b); 18 U.S.C. § 5017(c).
. 21 U.S.C. § 844(a).
. In No. 74 — 2528, the following discussion took place before appellant La Rue pleaded guilty:
THE COURT: Do you know the maximum sentence that the Court can impose upon you as a result of your plea of Guilty to this charge?
THE DEFENDANT: Yes, I do, Your Honor.
THE COURT: What is the maximum sentence?
THE DEFENDANT: One Year.
THE COURT: It is one year or five thousand dollar fíne, or both.
Also, because of your age, the Court could sentence you under the Federal Youth Corrections Act in which case you could spend up to six years under that Act even though the charge to which you are pleading Guilty is a misdemeanor which carries a maximum of one year in prison.
Now let me explain to you that it depends upon how you are sentenced.
If you are sentenced under the Federal Youth Corrections Act — and you can be, on a misdemeanor charge, sentenced under the Federal Youth Corrections Act — in which case you could spend up to six years in their custody.
Do you understand?
THE DEFENDANT: Yes, I do, Your Honor.
Reporter’s Transcript, vol. II, pp. 5-6.
In No. 74 — 2455, the following discussion took place between the Court and appellant Leming before Leming entered her plea:
THE COURT: Do you understand what is the maximum sentence you may receive as a result of your plea to this charge which charges you with possessing eighty-nine amphetamine tablets?
DEFENDANT LEMING: One year.
THE COURT: And a fine of what amount?
DEFENDANT LEMING: Five thousand.
THE COURT: Because of your age, ma’am, you are also subject to the provisions of the Youth Corrections Act, and you could be confined for as long as six years? Do you understand that?
DEFENDANT LEMING: Yes, sir.
THE COURT: Having in mind those maximum sentences that you can receive as a result of your plea of guilty, is it your desire to waive or give up those rights which I have *652stated to you and you have stated you understand and enter a plea of guilty to this charge of possession of eighty-nine amphetamine tablets? Is it still your desire to enter such a plea?
DEFENDANT LEMING: Yes.
R.T., vol. IV, pp. 5-6.
. See United States v. Hayes, 474 F.2d 965, 967 (9th Cir. 1974), quoting H.R.Rep.No.2979, 81st Cong., 2d Sess. 4 (1950). See also Dorszynski v. United States, 418 U.S. 424, 432-35 (1974).
. See Part II infra.
. See note 3 supra.
. Relevant testimony of Williams was as follows:
[Direct examination by Mr. Strauss, Assistant United States Attorney]
Q. All right. Now, in designating a young person — let’s take, for example, age 25 — to an institution, how is that determination made as to where that person would be sent?
A. Well, first of all, we depend upon the presentence report and the FBI report and so forth for background information, and from that information we gather the prior arrest record, prior conviction record, and prior involvement in criminal activity of the individual. And then based with that is the educational needs and educational, vocational requirements and the counseling needs of the individual. And that, more or less, is what we determine the designations on.
Q. Now, is that process in any way different if the person has been sentenced under the Youth Act, as opposed to an adult type sentence?
A. No. We go through the same process for all designations, whether it’s youth, adult, or alien or what have you?
# * * * * #
Q. Now, in designating a young person to an institution such as Lompoc, does it make any difference whether or not he has been sentenced as an adult offender or under the Youth Act?
A. No. We try to keep all of our youth in our youth facilities regardless as to the sentence; we try to put them into a youth facility, whereas they can have the benefit of the different training, counseling, and educational programs.
Q. If you have a person sentenced under the Youth Act, does that guarantee him that he will be sent to a youth facility?
A. Yes, to begin with.
*653Q. If you have a young person sentenced under an adult sentence, does he have the same guarantee?
A. Yes; he will be sent to a youth facility initially.
******
[Cross-examination by Mr. Boles]
Q. You indicated that persons are originally designated to — if they are in a youth category, say, from 18 to 26, to a youth facility?
A. Correct.
Q. Now, that’s whether or not they are Youth Act or adult sentences; is that correct?
A. Yes, depending, again, upon the prior record and the offense.
Q. They will either be sent to a more secure or less secure youth facility?
A. Right.
Q. But they would always be originally designated to a youth facility?
A. To a youth facility.
Q. Suppose that they didn’t behave themselves or respond to programming or whatever they might do. Could they then be transferred to other types of facilities?
A. Yes. I indicated that if an individual is committed originally to the youth facility and violates the rules and so forth and becomes a management problem, then he can be transferred to a more secure youth reformatory or an FCI, and, as the ultimate, he would be transferred to a penitentiary.
Q. This would be the same for somebody sentenced under the Youth Act or as an adult?
A. Correct.
i(s sfc s}i ‡
Q. I believe Mr. Strauss asked you this, but it was my understanding that — I just want to make sure I understand what you said — that a Youth Act person would be designated — whether he was sentenced as an adult or Youth Act, if they are in the age category, they would be guaranteed original designation to some type of youth facility?
A. Also dependent upon their prior record, yes.
Q. Right. And when you say a youth facility that means a place designated between this age group?
A. Right.
R.T. in No. 74-2455, vol. Ill, pp. 8, 12, 17-18, 20.
On treatment of offenders within federal institutions, the testimony was:
[Direct examination by Mr. Strauss]
Q. Once at the youth facility, is there any distinction between the treatment given to a young person sentenced under an adult sentence and a person of the same age sentenced under the Youth Act?
A. No. The same classification and testing process is granted to all commitments to a youth facility or an adult.
Q. Taking two people of equal age — let’s say, for example, 22 years old, one sentenced under a Youth Act sentence and one under an adult sentence for a similar crime with a similar background, what, if any, difference in treatment will one receive because he has a Youth Act sentence as opposed to the other under an adult sentence?
A. None whatsoever. It all depends upon the individual, but both are offered the same opportunities.
Q. So it is fair to say, then, that the programs that exist in an institution like Lompoc are required by law for Youth Act prisoners and that adult prisoners of the same age are being given the opportunity to participate in the youth programs-
A. Correct.
Q. -by the Bureau of Prisons-
A. Right.
Q. -although the Bureau of Prisons is not necessarily required to do that?
A. By law, no, but the programs are available. If I may, we also offer a lot of the same programs and other type counseling in all of our facilities, both penitentiaries, youth, FCI’s, and camps.
¡fc sfc # ‘Jfi sf* s{s
[Cross-examination by Mr. Boles]
Q. Now, once in the institution, whichever institution a person is designated to, are all the inmates in that institution offered the same program of services in that institution?
A. Yeah. What happens when an inmate is committed to one of our facilities, he’s first of all assigned a case manager, and then he’s given a battery of tests by the education department, the mental health department, he’s interviewed by different areas, and then he’s brought in to a classification committee, and the inmate and his classification team try to set up a program that all agree upon that is beneficial to him.
And if a program is full at one time, then he is put on the waiting list; and if you have two individuals — as someone used the example earlier, if you have two individuals with the identical same needs, then the youth, because of the law, would be put into a program before the adult of the same age. The youth would get priority in going into the program.
Q. You mean it would be a priority to someone sentenced under the Youth Act rather than an adult sentence?
A. Correct.
Q. But basically, though, in the institution, if the room is available, they are offered *654exactly the same treatment, whether they are Youth Act or adult?
A. Correct; right.
R.T. in No. 74-2455, vol. Ill, pp. 12-13, 15-16, 21-22.
On separation, the testimony was:
[Cross-examination by Mr. Boles]
Q. In an institution, for example, like Lompoc, is there separation between people who are sentenced under a Youth Act and those sentenced under an adult sentence in the youth category, or are they commingled together?
A. No. We make no separation of inmates in the same facility. They have the same programs, eating, recreation, and so forth.
Q. I take it there are no, then, separations between one type of Youth Act and the other type of Youth Act?
A. No, there are no separations at all.
R.T. in No. 74-2455, vol. Ill, p. 22.
. R.T. in No. 74-2455, vol. Ill, pp. 21-22. The relevant passage is quoted in full in n. 4 supra.
. R.T. in No. 74-2455, vol. Ill, pp. 13-14.
. See United States v. Rehfield, 416 F.2d 273 (9th Cir. 1969), cert. denied, 397 U.S. 996, 90 S.Ct. 1137, 25 L.Ed.2d 405; Eller v. United States, 327 F.2d 639 (9th Cir. 1964); Young Hee Choy v. United States, 322 F.2d 64 (9th Cir. 1963); and Standley v. United States, 318 F.2d 700 (9th Cir. 1963).
. See, e. g., Caldwell v. United States, 435 F.2d 1079 (10th Cir. 1970); Guidry v. United States, 433 F.2d 968 (5th Cir. 1970); Foston v. United States, 389 F.2d 86 (8th Cir. 1968); and Johnson v. United States, 374 F.2d 966 (4th Cir. 1967).
. Cf. In re Wilson, 438 Pa. 425, 264 A.2d 614, 617 (1970). See also Note, The FYCA: Past Concern in Need of Legislative Reappraisal, 11 Am.Crim.L.Rev. 229, 257-58 (1972).