Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division No. IP 75-281-C WILLIAM E. STECKLER, Judge.
Swygert, Bauer, Circuit Judges, and Hoffman,*fn* Senior District Judge.
Appellant asks us to vacate his fifteen year sentence for armed bank robbery in this 28 U.S.C. § 2255 motion on the grounds that the trial judge erred when sentencing him (1) by not making an express finding that the appellant would not benefit from disposition under the Young Adult Offenders Act (18 U.S.C. § 4209) and (2) by relying on misinformation and failing to adequately consider the applicability of the Young Adult Offenders Act. The district court refused to vacate the sentence and we affirm its decision.*fn**
Appellant was twenty-two years and eleven months old at the time of his sentencing. Convicted persons of twenty-two years or older are covered by the Young Adult Offenders Act, 18 U.S.C. § 4209:
"In the case of a defendant who has attained his twenty-second birthday but has not attained his twenty-sixth birthday at the time of conviction, if, after taking into consideration the previous record of the defendant as to delinquency or criminal experience, his social background, capabilities, mental and physical health, and such other factors as may be considered pertinent, the court finds that there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act (18 U.S.C. Chap. 402) sentence may be imposed pursuant to the provisions of such act."
Appellant was not sentenced under the provisions of the Youth Corrections Act.
Appellant contends that in light of the Supreme Court's decision in Dorszynski v. United States, 418 U.S. 424, 41 L. Ed. 2d 855, 94 S. Ct. 3042 (1974), which requires sentencing judges to make an express finding that persons covered by the Youth Corrections Act, 18 U.S.C. § 5010(d), will not benefit from sentencing under that Act before sentencing them under other statutes, a similar express finding must be made before sentencing persons who could be sentenced under the Young Adult Offenders Act since the latter Act incorporates by reference the Youth Corrections Act and must be interpreted in the same manner.
We do not agree with this contention. The two acts must be interpreted differently with regard to the necessity of a finding by the trial judge. The statutory language is markedly dissimilar. The Youth Corrections Act states:
"If the court shall find that the youth offender will not derive benefit from treatment . . ., then the court may sentence the youth offender under any other applicable penalty provision." 18 U.S.C. § 5010(d).
(A youth offender is defined by the Act as a person under the age of twenty-two years at the time of conviction, 18 U.S.C. § 5006(e).) The Young Adult Offenders Act states:
"[If] the court finds that there is reasonable grounds to believe that the defendant will benefit from the treatment provided under the Federal Youth Corrections Act (18 U.S.C. Chap. 402) sentence may be imposed pursuant to the provisions of such act."
While Congress presumed that the Youth Corrections Act would apply to offenders under 22 years of age, there is no similar presumption in the Young Adult Offenders Act. The Youth Corrections Act says the Act will apply unless a finding of no benefit is made. The Young Adult Offenders ...