(D.C. Civil Action No. 72-24). APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA.
Van Dusen and Adams, Circuit Judges, and Broderick, District Judge.
This appeal presents the issue of whether 18 U.S.C. § 5010(d) requires that a sentence imposed by a district judge on a 19-year-old convicted felon be vacated because the judge did not make a formal finding that the defendant "will not derive benefit from treatment under" 18 U.S.C. § 5010(b) and (c) of the Youth Corrections Act, Chap. 402 of Title 18, 18 U.S.C. § 5005, et seq., even though the judge,*fn1 at the time of sentencing, indicated in open court that he had given considerable thought to the sentence and had decided not to sentence the defendant under that Act, and in denying a motion to vacate the judgment of conviction and sentence, filed approximately four-and-one-half years after the sentence, stated:
"The fact that the Court did not sentence the defendant under the Youth Corrections Act but sentenced under the statute governing the offense for which he was convicted represented a finding that he would not benefit by treatment under the Youth Corrections Act."
See Memorandum of March 2, 1972, in Williams v. United States (Civil No. 72-24, W.D. Pa.).
We agree that the record must demonstrate that the district court has made the finding that "the youth offender will not derive benefit from treatment under subsection (b) or (c)" in order to sentence a defendant-youth offender under 18 U.S.C. § 5010(d). See Cox v. United States, 473 F.2d 334, Part III (4th Cir. 1973), and cases cited in notes 2-4 below.
After consideration of this record, we have concluded that the district court order of March 2, 1972, denying the motion to vacate the conviction and sentence, must be affirmed. We note that other federal courts considering subdivision (d) and other subdivisions of 18 U.S.C. § 5010 have held that a sentence under such subdivisions is valid if "the record as a whole"*fn2 "either explicitly or implicitly"*fn3 shows that the findings required by the applicable subdivision have been made.
In view of the increasing number of federal cases raising problems similar to that involved in this appeal,*fn4 and for the guidance of the district courts of this Circuit, we suggest that the findings prescribed by Congress in 18 U.S.C. § 5010 (b)-(d) be made in open court on the record so that the transcript or tape of the sentencing proceeding will clearly disclose that such findings have been made. We do not consider it necessary that the district courts of this Circuit adhere to all the requirements*fn5 stated as mandatory in United States v. Coefield, 155 U.S. App. D.C. 205, 476 F.2d 1152, 1156-58 (1973).
For the above reasons, the order of March 2, 1972, ...