dissenting:

While I must agree with the majority that the sentence first imposed was illegal, I wish to comment on the line of Youth Corrections Act (YCA) cases, Hayes, Mollet, and Bowens, which compel that conclusion. And I dissent from the court’s subsequent disposition of the case for the reasons indicated.

I.

In United States v. Hayes, 474 F.2d 965 (9th Cir. 1973), this court held that where a young offender is committed to the custody of the Attorney General for treatment and supervision under 18 U.S.C. § 5010 (b), the commitment can not be coupled with a fine. The court’s interpretation of the UCA on that narrow issue seems to me to be at least arguably correct, even if it is not necessarily compelled by a reading of the statute. 1 The opinion, however, laid down a broader rule which I believe to be unfortunate, to the effect that under the Act “a combination of rehabilitative treatment and retributive punishment is not intended and is improper. 2

The next in this line of cases was United States v. Mollet, 510 F.2d 625 (9th Cir. 1975). There, one defendant had been fined and committed to custody under § 5010(b), but in effect given a split sentence: he was to serve six months and then be placed on probation for five years (a typical sentence under 18 U.S.C. § 3651 ). The other two defendants had been fined and placed on probation under § 5010(a), with imposition of their sentences suspended. The opinion does not make it clear whether the sentencing judge specified that payment of a fine was to be a condition of the probation. See § 3651.

Mollet determined that the sentencing court could not commit to custody under § 5010(b) and impose a fine (following Hayes); nor, by extension, could it commit to custody and impose any sentence containing any specified lesser term of imprisonment (such as a split sentence), because this would be “retributive” rather than “rehabilitative.” Finally, Mollet held that the court could not even place a defendant on probation under § 5010(a) and impose a fine. Mollet reached this last result even though, in Cherry v. U. S., 299 F.2d 325 (9th Cir. 1962), this court stated that “probation as used in § 5010(a) means probation as defined in § 3651 and 3653; ” id. at 326, and § 3651 specifically provides that payment of a fine may be a condition of probation. Mollet also reached this result even though Congress provided, in passing the YCA, that

Thus, the Mollet panel went far beyond the holding in Hayes and decided, in effect, that sentencing judges may not impose any form of “retributive punishment” under any part of § 5010 except § 5010(d). 3

But my disagreement with Hayes and Mollet 4 runs deeper than their reflexive banishment of retribution from the sentencing arena in the name of rehabilitation. 5 Rehabilitation and retribution are only two of the accepted goals of sentencing. Other goals include removal of dangerous offenders from society (separation), reparation for the harm done to the victim (restitution), and dissuasion of the defendant from repeating and others from committing similar acts (deterrence). These other purposes are by no means inconsistent with rehabilitation, as happily this court has recently recognized, at least in part. See United States v. Hix, 545 F.2d 1247 (9th Cir. 1976) (restitution to the victim compatible with rehabilitation of the defendant under the YCA); cf. United States v. Buechler, 557 F.2d 1002 (3d Cir. 1977). Hayes and its progeny have threatened to make rehabilitation the exclusive purpose of a YCA sentence. A better reading of the YCA, it seems to me, is to say that any and all penal objectives may be pursued in sentencing under its provisions, so long as the means chosen to satisfy these objectives do not substantially detract from the primary goal of rehabilitation. 6

As for rehabilitation, it is extremely doubtful that two of the chosen means of the Act — §§ 5010(b) and 5010(c) — any longer serve their purpose, if they ever did. Many, if not most, of the youths committed to custody under § 5010(b) are in exactly the same institutions, and under precisely the same conditions, as adults who have been imprisoned, regardless of whether the principal aim of the sentencing judge was deterrence, separation, retribution, or rehabilitation. We do not need scholars to tell us that rehabilitation is an uncommon product of incarceration in such large fortresses. An imaginatively designed probation sentence will usually be far more rehabilitative to a young offender than confinement for possibly 7 four years under § 5010(b) or eight years under § 5010(c). To say that a fine or a short jail sentence imposed as a condition of probation is punitive and retributive in comparison to youth' offender commitment, which is “rehabilitative,” strikes me as jurisprudence by label and the height of unrealism.

The Hayes line of cases stands for the proposition that up to four years of total confinement in a federal prison is “rehabilitative,” so long as we order it for a youth *874 under 22 (or for that matter, a young adult under 26), but a fine or 30 days in jail or a community treatment center as a condition of probation is “punitive.” 8 I dare say that few, if any, of the youths who spend time in Lompoc would agree with this distinction. 9 I dare say that few of the Bureau of Prison employees who keep them there would either. 10

I am compelled by precedent to agree with my colleagues that the original sentence in this case cannot stand. However, I think the result illustrates the truth of Justice Frankfurter’s quip: “If you give bad dogma a good name, its bite will be worse than its bark.” I nurture a hope this circuit may see fit to take this case, or a similar one, en banc. This would provide a chance for a thorough study of the rationale of Hayes and Mollet and Bowens, and perhaps produce a more balanced interpretation of the Youth Corrections Act.

II.

My colleagues would uphold the new sentence imposed. But, even if it is proper for an appellate court to conceive its own grounds for the revocation of probation, and by this device to affirm the sentence of a revoking judge, 11 the particular sentence here meted out cannot stand. Marrón was originally sentenced to three years’ imprisonment, execution of the remainder to be suspended on condition that he serve one month of this term in jail. Now, under 18 U.S.C. §§ 5010 (b) and 5017(c), he faces the *875 possibility of remaining in the custody of the Attorney General for four years. The defendant is receiving a longer sentence than the sentence originally imposed, which cannot be done without violating his constitutional rights under the double jeopardy clause of the Fifth Amendment.

My colleagues cite Pollard v. United States, 352 U.S. 354 , 77 S.Ct. 481 , 1 L.Ed.2d 393 (1957), and United States v. Kenyon, 519 F.2d 1229 (9th Cir.), cert. denied, 423 U.S. 935 , 96 S.Ct. 293 , 46 L.Ed.2d 267 (1975), in support of the new sentence. But the question is not, as in Pollard , simply whether a custodial term may be substituted for an invalid probationary term. The question is whether a custodial term that enlarges the potential period of confinement may be substituted for any probationary term, valid or invalid. I would have supposed the answer to that question is found, not in Pollard , but in Roberts v. United States, 320 U.S. 264 , 64 S.Ct. 113 , 88 L.Ed. 41 (1943), which held that

Id. at 272-73 , 64 S.Ct. at 117 ; see also 18 U.S.C. § 3653 .

Kenyon is equally beside the point. There, an increase in punishment was upheld because the original sentence omitted a special parole term required by statute. Corrective sentencing of this nature has long been considered proper. See Bozza v. United States, 330 U.S. 160 , 166-67 & n.2, 67 S.Ct. 645 , 91 L.Ed. 818 (1947); Mathes v. United States, 254 F.2d 938, 939 (9th Cir. 1958). Here the original sentence did not impose less than the legal measure of punishment; it was invalid, rather, precisely because it imposed more.

Our choices have been narrowed. Since the sentencing judge found that Marrón could benefit from youth offender treatment (therefore ruling out disposition under § 5010(d)), and since Marrón would be subject to possible increased punishment were he sentenced under either § 5010(b) or § 5010(c), our only course is to remand to the district judge with specific instructions that he resentence the defendant to a valid § 5010(a) probation to be treated as commencing April 2, 1976, the original date of sentence. Thus the law of the circuit, in combination with the Constitution and Youth Corrections Act, has produced an ironical result. The sentencing judge has painted the revoking judge 12 into a corner where he can do nothing about the conduct of a probationer, although that conduct would presumably justify a revocation of probation.

. Section 5010(b) speaks of sentencing a youthful defendant to the custody of the Attorney General “in lieu of the penalty of imprisonment otherwise provided by law.” (Emphasis added.) Just as “[t]here is no indication that Congress intended by such language to make fines permissible in conjunction with a sentence committing a youth offender for rehabilitative treatment,” Hayes, supra at 967 , there is no indication of an opposite intention, either. In fact, a defendant who is set at liberty on condition that he pay a fine is not forced to associate with hardened convicts likely to corrupt him, which was a major factor in Congress’ opposition to the mere punishment of young offenders.

. I have two quarrels with this bit of dictum.

First, to support it the court cites a decision from the D.C. Circuit, United States v. Waters, 141 U.S.App.D.C. 289 , 437 F.2d 722 (1970), which hardly stands for the proposition offered, namely, that rehabilitation is exclusive of retribution. Waters concerned only the attempt by a sentencing judge to impose a minimum period of commitment under § 5010(b), and held that “the statutory scheme does not envisage this particular combination of rehabilitation and deterrence.” Id. 141 U.S.App.D.C. at 293 , 437 F.2d at 726 . (Emphasis added.)

Second, the statement conveys an erroneous impression of analytic truth, as if the end of rehabilitation necessarily precludes the achievement of other penal goals. See text, infra.

. Under § 5010(d), the court may reject the alternative commitment procedures of the Act and sentence the defendant as an adult. The adult provisions, e. g., 18 U.S.C. § 4205 , of course do not rule out retribution as a consideration in sentencing.

. The last in this line of cases, United States v. Bowens, 514 F.2d 440 (9th Cir. 1975), adds nothing to the holding of Mollet since its modification by United States v. Hix, infra, and therefore needs no separate discussion.

. The two ends are not logically antithetical. The most one can say is that rehabilitation may be difficult or even impossible, as a practical matter, when certain methods of exacting retribution are chosen, e. g., confinement for a lengthy period in a large central prison.

. The Report of the House Judiciary Committee said of the YCA that the bill

1950 U.S.Code Cong.Serv. 3985.

. Under the theory advanced by the panel, if the Court, on revocation, was entitled to sentence to an indeterminate commitment under § 5010(b), I see no reason why the Court could not, under § 5010(c), if it found that the defendant “may not be able to derive maximum benefit from treatment” under § 5010(b), sentence the defendant to any term authorized by the statute which defendant had violated. In this case, 18 U.S.C. § 495 carries a ten year maximum. Hence, this defendant, who thought he was getting a maximum of three years at the original sentence, stands under the result achieved, to serve a maximum of four years (§§ 5010(b) and 5017) or eight years (§§ 5010(c) and 5017).

. There is perhaps an intimation in footnote 5 of the majority opinion that when a court desires to have the defendant spend a short time in custody, it can use the study provisions of § 5010(e) to hold him for up to 60 days. Such a procedure would use a statutory disposition designed for one purpose for a wholly different one; more seriously, it would subvert the purpose of § 5010(e), because it would mean that the sentencing judge has at least partially decided the disposition question for which the defendant was being committed. I understand that in at least one district in this circuit, judges have got around Hayes and Mollet by the similar expedient of initially rejecting the Act; imposing a split sentence; and then, after the short jail term has been served, modifying the sentence under Rule 35, Fed.R.Cr.P., to one of probation under § 5010(a). I do not think that judges should be forced to be “corner cutters.”

. Many YCA offenders go to the Federal Correctional Institution in Lompoc, California, for “treatment” under § 5010(b) or (c). The latest available figures for that institution show that of 777 persons confined, 297 have Youth Act commitments, while 480 have adult commitments. Of the 480, 228 are serving sentences from five years to over twenty years, and 5 have life sentences. U. S. Bureau of Prisons, Statistical Report-Fiscal Year 1975 30. We are entitled to assume that many, if not most, of the 480 are “hardened offenders,” association with whom by young offenders was the very evil which Congress sought to cure by the YCA.

. Indeed, a person whose credentials are outstanding — Norman A. Carlson, Director of the U.S. Bureau of Prisons — said, in a recent congressional appearance:

Statement of Norman A. Carlson before the Subcommittee on Penitentiaries and Corrections of the Senate Committee on the Judiciary, October 5, 1977.

. Under other circumstances I would quarrel with a procedure that allows an appellate court to engage in an independent reading of the record to affirm the sentence of a revoking judge. The decision whether or not to revoke probation is committed firmly to the trial court’s discretion. Burns v. United States, 287 U.S. 216, 221 , 53 S.Ct. 154 , 77 L.Ed. 266 (1932). In this case my objection is moot, however, since there is now only one possible disposition that can be made. See text, infra.

If, in fact, it is impermissible for a revoking judge to consider an uncounseled misdemeanor conviction — an issue that I do not reach — certainly the present record does not allow us to state with any confidence that the court below did not rely upon such a factor. The judgment of the court was “that the facts set forth in the Petition [to Revoke Probation] are true, that there was a violation of the probation order in this case, and that the probation should be revoked.” Transcript of Revocation Hearing at 27. If anything, the sequence of phrases suggests that the finding of a “violation of the probation order” was' based on “the facts set forth in the Petition” — which relate solely to the D.W.I. conviction. Record on Appeal at 10-12.

. Marrón has not raised the question of a judge hearing the revocation matter who was not the sentencing judge. Accordingly, I express no opinion as to the validity of this procedure.