Veney v. United States

WAGNER, Chief Judge,

concurring in the judgment:

We granted en banc review to determine whether D.C.Code § 24~803(d) imposes procedural limitations or other preconditions upon the sentencing court before it can sentence an age eligible youth offender as an adult under other applicable penalty provisions. In Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974), the Supreme Court answered this question for us when it interpreted an identical provision of the federal statute from which § 24-803(d) was copied.1 The court *436today holds that our local “no benefit” provision, which, in all material respects, is identical to the one under consideration in Dorszynski, requires something less for compliance than the Supreme Court specified. I perceive no basis in our local statute or its legislative history to support this court’s variant interpretation of the “borrowed” language or its departure from our well-established practice of considering such precedent “as persuasive authority when interpreting a local provision that is substantially patterned on a federal statute.” Benefits Communication Corp. v. Klieforth, 642 A.2d 1299, 1303-04 (D.C.1994); see also Foster v. United States, 615 A.2d 213, 217 (D.C.1992) (“Because the Youth Rehabilitation Act, passed by the Council of the District of Columbia to ‘fill the void created by congressional repeal of the Federal Youth Corrections Act,’ is patterned after the federal act, interpretations of the federal act are instructive here.”) (citation omitted).

In Dorszynski, in interpreting § 5010(d) of the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. (FYCA), the Supreme Court held that “while an express finding of no benefit must be made on the record, the Act does not require that it be accompanied by supporting reasons,” 418 U.S. at 425-26, 94 S.Ct. at 3044, and that the “no benefit” provision does not constitute a substantive standard. Id. at 441, 94 S.Ct. at 3052. In explicating its ruling, the Court provided a clear guideline for compliance with the “no benefit” provision when it stated that

[l]iteral compliance with the Act can be satisfied by any expression 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.

Id at 444, 94 S.Ct. at 3053. I agree with Judge Reid that the court’s formulation today does not comport with the Supreme Court’s interpretation, particularly in its failure to require that there be an expression on the record which “reveals that the trial judge has exercised his discretion and decided that the youth will derive no benefit from YRA treatment”2 Post at 438.

The Youth Rehabilitation Act (YRA) included no changes from the FYCA which altered the “no benefit” provision at issue in this appeal.3 The provisions of the YRA, to which this court points, apparently as a basis for rejecting the Dorszynski interpretation, specifically §§ 24-803(c) and (f), effected no material change supportive of a different interpretation of the “no benefit” language of § 803(d). Section 803(f), which states that the options created by the YRA constitute “sentencing alternatives in addition to the options already available to the court,” codifies the Supreme Court’s statutory interpretation of the FYCA as set forth in Dorszynski. Specifically, the Supreme Court recognized that § 5010(d) of the FYCA “was intended to increase the sentencing options of federal trial judges, rather than to limit the exercise of their discretion whether to employ the newly created options.” Dorszynski, supra, 418 U.S. at 440, 94 S.Ct. at 3051. Accordingly, the Court held that

the discretion vested in a district judge under § 5010(d) is essentially the same as the traditional discretion vested in the court, for example, to impose the minimum sentence on a first offender or a larger sentence on a recidivist.

Id. at 442, 94 S.Ct. at 3052. It concluded that a “no benefit” finding did not constitute *437a substantive standard and that therefore, the sentencing court was not required to state reasons for choosing an alternative adult sentence. Id. at 441, 94 S.Ct. at 3051-52. Since the substance of § 803(f) of the YRA essentially eapsulizes these aspects of the Supreme Court’s interpretation of the FYCA at the time it decided Dorszynski, there is no basis for concluding that the inclusion of § 803(f) in the YRA constrains us to interpret our “no benefit” provision any differently than the Supreme Court did. Therefore, I disagree with the court that adoption of the “government’s ‘fall-back’ position” in interpreting the “no benefit” finding is required “[i]n order to reconcile subsections (d) and (f)” and “to accommodate the language of each of these provisions.” See ante at 434.

The court also finds significant to its holding that § 803(c) of the District’s YRA, which requires that the sentencing court state reasons for imposing a YRA sentence, represents a change which reverses “the FYCA’s tilt in favor of youth offender sentencing.”4 Assuming that to be the case, this additional requirement for imposition of a sentence under § 24-803(c) of the YRA effected no material change in the “no benefit” requirement of § 803(d). Section 24-803(c) provides that “[w]here the court finds that a person is a youth offender and determines that the youth offender will derive benefit from the provisions of this chapter, the court shall make a statement on the record of the reasons for its determination.” In addition to allowing the youth offender to present facts to the court bearing upon its sentencing decision, one purpose of this provision, as reflected in the legislative history, is that it affords the prosecutor an opportunity to argue against such treatment. Report at 3. Significantly, in discussing this new provision, there follows a statement that “[t]he judge may also impose an adult sentence if he or she finds that there will be no benefit.” Id. (emphasis added). Thus, the intention to retain the “no benefit” finding requirement, already clear from the inclusion in the YRA of § 803(d), is further buttressed by this expression of legislative intent in spite of the

enactment of the new § 24-803(e). For these reasons, there appears to be no basis for concluding, as the majority seems to, that the provisions of § 803(c) require a change in the interpretation accorded the language in § 803(d) by the Supreme Court.

This jurisdiction’s adoption of the universally recognized principle of statutory construction requires that “[wjhen a local provision is borrowed directly from a federal statute, the Council [of the District of Columbia] is presumed to have borrowed the judicial construction thereof as well.” Meiggs v. Associated Builders, Inc., 545 A.2d 631, 635 (D.C.), cert. denied, 490 U.S. 1116, 109 S.Ct. 3178, 104 L.Ed.2d 1040 (1989) (quoting Hughes v. District of Columbia Dep’t of Employment Servs., 498 A.2d 567, 571 n. 8 (D.C.1985)) (alteration in original) (other citations omitted). We should adhere to this proposition and to the sound principle of recognizing the Supreme Court’s interpretation of the identical federal statutory provision as persuasive, if not controlling, authority. See Klieforth, supra, 642 A.2d at 1303-04; see also District of Columbia v. Patterson, 667 A.2d 1338, 1343 n. 14 (D.C.1995) (“Supreme Court interpretations of general federal statutes are, of course, binding on all courts, state or federal.”) (citations omitted). Therefore, I disagree with the court’s determination that because of additional provisions in the YRA, “we view our decisions under the FYCA as helpful but not controlling in the future.”5

While the trial court’s “no benefit” determination was not a model of clarity, it was adequate to meet the requirements set forth in Dorszynski and its progeny in this jurisdiction. In Dorszynski, the Supreme Court stated that compliance with the Act was met by “any expression that makes clear the sentencing judge considered the alternative sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.” 418 U.S. at 444, 94 S.Ct. at 3053. In light of this instruction from Dorszynski, this court has held that compliance with the “no benefit” finding *438requirement does not require that the trial court “parrot the statutory words if it explained its grounds for rejecting the [Youth Act] proposal.” Taylor v. United States, 324 A.2d 683, 685 (D.C.1974); see also Bettis v. United States, 325 A.2d 190, 198 (D.C.1974). Here, essentially, for the reasons stated by Judge Reid in her concurring opinion, I conclude that the record of the sentencing proceeding reveals that the trial court was well aware of appellant’s eligibility for sentencing under the YRA, articulated on the record some of the reasons for and against sentencing him under the Act, and found that he would not benefit from such a sentence. See Taylor, 324 A.2d at 685. For these reasons, I concur in the judgment of the court.

. D.C.Code § 24-803(d) provides:

If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision.

Section 5010 (d) of the Federal Youth Corrections Act differs only in its reference to an addi*436tional treatment section, § 5010(c), which provided for a longer term of treatment than § 5010(b).

. I also agree with Judge Reid that the dissenting opinion requires greater precision for compliance by the sentencing court than the statute, as interpreted in Dorszynski, demands.

. The YRA was enacted by the Council of the District of Columbia in 1985 to fill the void left when Congress repealed the Federal Youth Corrections Act. Report of the Council of the District of Columbia, Committee on the Judiciary, On Bill 6-47, "The Youth Rehabilitation Act of 1985,” (Report) at 2 (June 19, 1985). "For the most part, the YRA is modelled on and similar to its federal predecessor.” Vaughn v. United States, 598 A.2d 425, 429 (D.C.1991) (citing Report at 3). Although there are some significant differences between the FYCA and the YRA, the provision which concerns us primarily, § 24-803(d), is identical to the provision in the FYCA.

. See ante at 432.

. See ante at 435 n. 11.