United States v. Joyce Loraine Leming, United States of America v. Lash La Rue

*648 OPINION

These appeals, presenting similar contentions, were consolidated for argument. A complaint charging a felony was first filed against each defendant; then, following plea bargaining, the government filed as to each defendant an information charging possession of a controlled substance, a misdemeanor under 21 U.S.C. § 844 . Each defendant pled guilty and was sentenced on the information charging a misdemeanor; sentence was imposed under the Youth Corrections Act, 18 U.S.C. § 5010 .

Each defendant was sent to a youth institution.

Leming contends (1) the sentence for a term exceeding one year constitutes infamous punishment and that an indictment was required; (2) sentence under the Youth Corrections Act deprived her of due process and equal protection under the law and constitutes cruel and unusual punishment.

La Rue raises (1) above and (2) that the sentence deprived him of equal protection under the law.

THE PROCEEDINGS BELOW

Leming

On February 7, 1973, a complaint was filed charging Leming with possession with intent to distribute approximately 4.3 grams of heroin, 23.5 grams of marijuana, and 89 amphetamine tablets, a felony in violation of 21 U.S.C. § 841…

(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…

532 F.2d 647 UNITED STATES of America, Plaintiff-Appellee, v. Joyce Loraine LEMING, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Lash LA RUE, Defendant-Appellant. Nos. 74-2455, 74-2528. United States Court of Appeals, Ninth Circuit. Aug. 4, 1975. Rehearing and Rehearing En Banc Denied Nov. 13, 1975. Certiorari Denied March 22, 1976. See 96 S.Ct. 1485 . Robert L. Boles (argued), San Diego, Cal., for defendant-appellant leming. Lewis A. Wenzell (argued), San Diego, Cal., for defendant-appellant La Rue. Rick Strauss, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.OPINION Before DUNIWAY and CARTER, Circuit Judges, and WEIGEL * , District Judge. CARTER, Circuit Judge: 1 These appeals, presenting similar contentions, were consolidated for argument. A complaint charging a felony was first filed against each defendant; then, following plea bargaining, the government filed as to each defendant an information charging possession of a controlled substance, a misdemeanor under 21 U.S.C. § 844 . Each defendant pled guilty and was sentenced on the information charging a misdemeanor; sentence was imposed under the Youth Corrections Act, 18…