Carlos Lamont Scruggs appeals from the denial of his petition under 28 U.S.C. § 2255 for relief from a twenty-year sentence imposed in 1971. The appeal is presently before us upon application of Scruggs for appointment of counsel. We deny the application and dismiss the appeal as frivolous. See Local Rules 2 and 9.

On February 10, 1971, Scruggs was convicted after trial by jury of aggravated armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d), and on February 26, 1971, was sentenced to a term of twenty-five years imprisonment. On appeal, this Court vacated the sentence because an essential element of 18 U.S.C. § 2113(d) was not submitted to the jury, and the case was remanded for resentencing solely under 18 U.S.C. § 2113(a). Scruggs v. United States, 450 F.2d 359 (8th Cir. 1971), cert. denied, 405 U.S. 1071, 92 S. Ct. 1521, 31 L. Ed. 2d 804 (1972). On December 3, 1971, Scruggs was resentenced to a term of twenty years imprisonment.

At the time of his conviction, sentencing, and resentencing, Scruggs was 19 years old and thus eligible for treatment under the Youth Corrections Act, 18 U.S.C. §§ 5005 et seq. Since the District Court did not impose sentence under that Act, Scruggs was therefore entitled to have the District Court render an explicit finding of "no benefit" under the Act as required by the Supreme Court in Dorszynski v. United States, 418 U.S. 424, 94 S. Ct. 3042, 41 L. Ed. 2d 855 (1974), a decision which this Court has held to be retroactive in application. See Brager v. United States, 527 F.2d 895, 898 (8th Cir. 1975); Sappington v. United States, 518 F.2d 28, 29 (8th Cir. 1975).1

On February 9, 1976, Scruggs filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, basing his claim for relief on the alleged failure of the District Court to make the "no benefit" finding required by Dorszynski. The District Court, which had originally sentenced Scruggs, see28 U.S.C. § 2255, summarily denied the petition.2

The record of the December 3, 1971, resentencing proceeding discloses that the District Court did not make a "no benefit" finding or even refer to the Youth Corrections Act at that time.3 At the original sentencing proceeding, however, counsel for Scruggs requested consideration under the Act:

I would like to suggest to the Court that perhaps society could best be served if consideration be given to placing this man under the jurisdiction of the Youth Act. He became nineteen last February last January, Your Honor. It seems that there is sufficient time to utilize the intelligence of this man in proper methods rather than chalking him off so to speak, and for that reason it would be my suggestion, sir, that perhaps consideration could be given to sentencing him under the Youth Act with the opportunity then of quicker rehabilitation and quicker release.

This Court, and I think any other Court, is not insensitive, as it's been demonstrated here this morning, to giving people a chance, but when I read your presentence report and the things that you've been involved in; the consistent, continuing pattern of disregard for law and order and everything else, the Court sees no reason to sentence you under the Young Adult Offender Act.4

While the District Court did not specifically utilize the phrase "no benefit", its discourse clearly indicates that it considered sentencing Scruggs under the Youth Corrections Act and rejected this alternative because "no reason" to think Scruggs would benefit from such a sentence was apparent in view of his "consistent, continuing pattern of disregard for law and order". This determination adequately satisfies the "no benefit" requirement of Dorszynski.5

The application for appointment of counsel is accordingly denied and the appeal is dismissed.

BRIGHT, Circuit Judge (dissenting).

I respectfully dissent. One of the main purposes of the Youth Corrections Act, 18 U.S.C. §§ 5005 et seq., is to try to prevent a young offender from following a lifetime of criminal activity. The Congress, I believe, recognized that to sentence a youth to a long prison term with adult criminals is, in effect, to conclude that rehabilitation of that young offender is a virtual impossibility. Because of the gravity of such a determination, Congress and the courts have required sentencing judges to make explicit findings of no benefit under the Youth Corrections Act before the defendant could be sentenced as an adult.

In the instant case, the district judge not only failed to make an explicit "no-benefit" finding under the Youth Corrections Act, but apparently considered only the Young Adult Offenders Act, 18 U.S.C. § 4209. The Young Adult Offenders Act applies only "(i)n the case of a defendant who has attained his twenty-second birthday but has not attained his twenty-sixth birthday at the time of conviction * * *." It permits special treatment only if the court affirmatively finds that the defendant "will benefit." Since Scruggs had just turned 19 at the time of sentencing, this statute did not apply to him. The district judge's inconclusive comments concerning the Young Adult Offenders Act at defendant's initial sentencing6 cannot be construed as an explicit no-benefit finding under the Youth Corrections Act. Instead, they may reflect a failure to make the affirmative finding of probable benefit required by the Young Adult Offenders Act.

Accordingly, I would reverse and remand this case either for resentencing or for a "conscientiously" made determination by the district court that it was aware of the Youth Corrections Act at the time of sentencing and determined at that time that defendant would receive "no benefit" under the Act. Tasby v. United States, 535 F.2d 464, at 465-466 (8th Cir. 1976); Brager v. United States, 527 F.2d 895, 898-99 (8th Cir. 1975).