(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 Brady trilogy hold is that a person who convicts himself out of his own mouth may not later complain that the government, left to its own devices, would not have been able to convict him in accord with the rules. A guilty plea replaces and makes superfluous the government process of investigation and prosecution. Constitutional defects in that process are therefore irrelevant to the issue of guilt; their existence does not impugn “the accuracy of the defendant’s admission that he committed the crime.” McMann, supra, 397 U.S. at 773, 90 S.Ct. at 1450 . See also, Brady, supra, 397 U.S. at 757, 758, 90 S.Ct. 1463 , 25 L.Ed.2d 747 . Therefore, such such defects shall not be grounds for vacating a guilty plea, voluntarily and intelligently made. Tollett, supra, 411 U.S. at 267 , 93 S.Ct. 1602 , 36 L.Ed.2d 235 . But that reasoning, which applies to the process of proving guilt, does not apply to the process of punishing.

A guilty plea does not make superfluous the government’s duty to apply punishment in conformity with law and the Constitution; and there is nothing self-eontradicto-ry about admitting guilt and then insisting on being punished fairly. The reasoning of Tollett , which deals with constitutional attacks by a defendant on the validity of his own guilty plea, does not necessarily extend to constitutional attacks on the validity of a sentence imposed by a judge; and the majority offers no reason for such an expansive reading, though it will greatly affect *651 the rights of criminal defendants who plead guilty.

Moreover, Tollett does not apply in terms. The opinion explains that “[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process,” 411 U.S. at 267 , 93 S.Ct. at 1608 (emphasis added), and it clearly limits the waiver inherent in a guilty plea to “claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id. (emphasis added). See also 411 U.S. at 265-66 , 93 S.Ct. at 1607 . Without explanation, the majority here extends the Tollett principle to constitutional claims arising from the process of punishment, which takes place after the guilty plea and conviction — after the “break in the chain.”

The majority opinion lays emphasis on the fact that both appellants engaged in plea bargaining. This, of course, is the case in the great majority of persons who enter guilty pleas. Cf. Brady, supra, 397 U.S. at 751-52, 90 S.Ct. 1463 , 25 L.Ed.2d 747 ; Tollett, supra, 411 U.S. at 261-64 , 93 S.Ct. 1602 , 36 L.Ed.2d 747 . It does not offer an independent ground for finding waiver. The majority seems to feel that, as part of a plea bargain, a defendant may agree to be subjected to an unconditional sentence. I can see no reason in law, and no advantage to any side, in allowing such bargains.

Young Hee Choy, supra, the other case relied on in the majority opinion, deserves brief discussion. In Young Hee Choy , the defendant raised a constitutional challenge similar to appellants’ here. The court did not find waiver, but reached the constitutional issue on the merits, rejecting it on the basis of Cunningham v. United States, 256 F.2d 467 (5th Cir. 1968), and Carter v. United States, 113 U.S.App.D.C. 123 , 306 F.2d 283 (1962). See, 322 F.2d at 66 and n. 7.

Even if the majority were right to extend Tollett to constitutional challenges arising from punishment, there would be an additional reason in this case not to find waiver. A waiver of constitutional rights must be knowingly and intelligently made. Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019 , 82 L.Ed. 1461 (1938). When it comes as a result of a guilty plea it must be made “with understanding of . the consequences of the plea.” Fed.R.Crim.P. 11. Appellants Leming and La Rue both understood that they could be sentenced to up to six years of confinement under the Youth Corrections Act. 3 But they had no way of *652 knowing the crucial fact upon which they now base their challenge: That confinement under the Act is no different from prison. The assumption of the Act’s draftsmen, 4 of the cases upholding the constitutionality of § 5010(b), 5 and presumably of the trial judges below 6 was that Youth Corrections Act confinement would offer special conditions and opportunities which would compensate for the risk of having to spend more time than would be required under an adult sentence to prison. The facts on which appellants now rely to refute that assumption came to light over one year after they entered guilty pleas. They cannot be said to have understood at the time of plea that they could be subject to six years in prison.

I cannot agree with the majority that, under Tollett , these appellants have waived their claim by pleading guilty. Further, I cannot agree that if a waiver took place, it was with adequate knowledge of the consequences. These appellants have standing to raise their claim and have it considered on the merits. See Young Hee Choy, supra, 322 F.2d at 65-66 .

II

Although § 5010(b) calls for “treatment and supervision” in the custody of the Attorney General “in lieu of” imprisonment, the record in these two cases shows that § 5010(b) confinement and imprisonment are functional equivalents. In No. 74-2455, following Leming’s sentence, the parties agreed to a hearing to supplement the record. At that hearing, the government called as a witness Mr. James Daniel Williams of the federal Bureau of Prisons. His testimony, uncontradicted and unchallenged, established that persons under the age of 26 who are sentenced to confinement under the Youth Corrections Act find themselves treated just like other persons of similar age who are sentenced to regular prison terms for like crimes. According to his testimony, regardless of whether or not sentence is imposed under the Youth Corrections Act, the Bureau of Prisons assigns a young offender to a specific institution, offers treatment and rehabilitation opportunities within the institution, and mixes young offenders together in the general population within the institution. 7 The *653 only differences to which Williams testified were these: First, if a rehabilitation program in a given institution is oversubscribed, a person sentenced under the Youth *654 Corrections Act has first chance at any openings; 8 and second, a person sentenced under the Youth Corrections Act who turned out to be a troublemaker might go through a longer process of reassignment than a troublemaker under adult sentence before eventually being assigned to a penitentiary. 9 Neither difference has been shown to apply in either case at bar.

Sentences of confinement under § 5010(b), imposed on misdemeanor offenders, have been repeatedly challenged on due process and equal protection grounds, based on the fact that the maximum term under the Youth Corrections Act is longer than the one year maximum provided for adults who commit misdemeanors. The courts have consistently rejected the argument. The leading cases are Cunningham v. United States, supra, and Carter v. United States, supra. Cunningham and Carter have been followed in this Circuit 10 and in others. 11 However, the central premise of every case upholding longer sentences under the Youth Corrections Act against due process and equal protection claims has been that “confinement [under 18 U.S.C. § 5010 (b) ] cannot be equated with incarceration in an ordinary prison.” Carter, supra, at 285 (emphasis added). In Cunningham , the court based its holding on its observation that the Youth Corrections Act

The leading cases in this Circuit rely directly on Carter and Cunningham. See, e. g., Eller v. United States, 327 F.2d 639 (9th Cir. 1964). Each of them depends on the constitutional reasoning expressed most simply in Carter :

The evidence in the cases before us shows, inescapably, that the premise of Carter and Cunningham , relied on in Eller, supra, Young Hee Choy v. United States, supra, and Standley v. United States, 318 F.2d 700 (9th Cir. 1963), is untenable. Confinement under the Youth Corrections Act today may be as rehabilitative in an absolute sense as the draftsmen intended, but the testimony of Mr. Williams makes it *655 clear that such confinement is not different from ordinary prison incarceration, in its general conditions, nor in rehabilitative and corrective opportunities, nor in share of physical and psychological shocks and traumas. There is, therefore, no quid pro quo for the potentially longer confinement for these two misdemeanor offenders under the Youth Corrections Act. The only significant difference between a sentence under § 5010(b) and one of ordinary imprisonment under 21 U.S.C. § 844 (a), according to Mr. Williams’ testimony, is the label. We have been alerted to the dangers of accepting uncritically the labels which government attaches to the forced confinement of citizens, particularly young ones. In re Gault, 387 U.S. 1, 27-28 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967). Under the current policies of the Bureau of Prisons as described by Mr. Williams, to sentence Leming and La Rue to confinement under 18 U.S.C. § 5010 (b) is to sentence them to prison. To the extent their sentences may exceed one year of confinement, those sentences exceed the statutory maximum established in 21 U.S.C. § 844 (a), and therefore deprive appellants of due process of law. 12

Finding no waiver, I would reach the merits and conclude that, under the current policies of the Bureau of Prisons, appellants’ sentences violate the Due Process Clause of the Fifth Amendment to the extent that they may exceed one year in confinement.

. 18 U.S.C. § 5010 (b); 18 U.S.C. § 5017 (c).

. 21 U.S.C. § 844 (a).

. In No. 74 — 2528, the following discussion took place before appellant La Rue pleaded guilty:

In No. 74 — 2455, the following discussion took place between the Court and appellant Leming before Leming entered her plea:

. See United States v. Hayes, 474 F.2d 965, 967 (9th Cir. 1974), quoting H.R.Rep.No.2979, 81st Cong., 2d Sess. 4 (1950). See also Dorszynski v. United States, 418 U.S. 424, 432-35 (1974).

. See Part II infra.

. See note 3 supra.

. Relevant testimony of Williams was as follows:

On treatment of offenders within federal institutions, the testimony was:

. R.T. in No. 74-2455, vol. Ill, pp. 21-22. The relevant passage is quoted in full in n. 4 supra.

. R.T. in No. 74-2455, vol. Ill, pp. 13-14.

. See United States v. Rehfield, 416 F.2d 273 (9th Cir. 1969), cert. denied, 397 U.S. 996 , 90 S.Ct. 1137 , 25 L.Ed.2d 405 ; Eller v. United States, 327 F.2d 639 (9th Cir. 1964); Young Hee Choy v. United States, 322 F.2d 64 (9th Cir. 1963); and Standley v. United States, 318 F.2d 700 (9th Cir. 1963).

. See, e. g., Caldwell v. United States, 435 F.2d 1079 (10th Cir. 1970); Guidry v. United States, 433 F.2d 968 (5th Cir. 1970); Foston v. United States, 389 F.2d 86 (8th Cir. 1968); and Johnson v. United States, 374 F.2d 966 (4th Cir. 1967).

. Cf. In re Wilson, 438 Pa. 425 , 264 A.2d 614, 617 (1970). See also Note, The FYCA: Past Concern in Need of Legislative Reappraisal, 11 Am.Crim.L.Rev. 229, 257-58 (1972).