Daniel Lee Cherry v. United States

This appeal is from a denial of a motion to vacate sentence under 28 U.S.C. § 2255 . Appellant, who was then 19 years old, was indicted for a violation of 18 U.S.C. § 2312 , pleaded guilty, and on June 2, 1959, was placed on probation for five years. His probation was revoked on May 4, 1960, and the court sentenced him to the custody of the Attorney General pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010 (b) , until discharged pursuant to § 5017 (c) . Both when convicted and when sentenced, he was a “youth offender” ( 18 U.S.C. § 5006 (e)).

Appellant contends that the court had no authority to sentence him to the custody of the Attorney General on revocation of his probation because at the time he was given probation the court made no express finding that he was a “youth offender”. He urges that the judge must have been acting pursuant to 18 U.S.C. § 3651 , which allows granting of probation to adults, rather than § 5010(a), which applies to youth offenders, and that, following revocation of probation, the judge had no discretion to sentence appellant to the custody of the Attorney General, because such a sentence was not one which might originally have been…