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.

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(a)(1).

The parties stipulated that there was a plea bargain that the government would file a superseding information charging Leming with a violation of 21 U.S.C. § 844, possession of a controlled substance, a misdemeanor, and would dismiss the felony charge and recommend probation in exchange for a plea of guilty to the information.

On May 11, 1973, the information was filed under 21 U.S.C. § 844, charging possession of 89 amphetamine tablets.

On June 18, 1973, Leming, represented by counsel, offered a plea of guilty to the misdemeanor charge. The possible six-year length of a Youth Act sentence was fully explained by the court and the record clearly shows a voluntary, intelligent and informed plea. The court accepted and entered the guilty plea.

Through counsel, Leming asked the court for a probationary sentence under 18 U.S.C. § 5010(a). On July 30, 1973, she was placed on probation under 18 U.S.C. § 5010(a) for a period of three years. Among the conditions of the probation were provisions (1) that she obey all laws; (2) that she not use or possess narcotics, marijuana, LSD or dangerous drugs in any form, and (3) that she participate in a drug abuse program.

Before making the order final the court asked her if the proposed sentence was agreeable to her and she confirmed her desire to be so sentenced.

Less than a year later, on June 17, 1974, she was charged with violation of probation. Hearings were held on June 24 and 27, 1974, at which she admitted the charges of (1) use of narcotics, and (2) conviction and sentence for forgery. On June 27, 1974, probation was revoked and she was sentenced to the custody of the Attorney General under 18 U.S.C. § 5010(b). She appeals from this sentence.

Only after Leming, a year later, proved herself incapable of complying with the conditions of probation and revocation of probation proceedings were filed, did she raise for the first time a belated objection to her sentence.

On May 29, 1973, a complaint was filed against La Rue charging illegal importation of five kilos of marijuana, one-quarter ounce of marijuana, and one-tenth gram of heroin, a felony, in violation of 21 U.S.C. §§ 952, 960 and 963. (We take judicial notice of the records of the district court.) Plea bargaining followed.

On June 22, 1973, as a result of the plea bargaining, an information was filed charging La Rue with possession of one-quarter ounce of marijuana, one-tenth gram of heroin, and five kilos of marijuana, a misdemeanor under 21 U.S.C. § 844. On that date the district judge struck from the information the reference to the five kilos of marijuana, not as part of plea bargaining, but because La Rue admitted the importation of the small amounts of contraband but denied knowledge of the five kilos. La Rue, represented by counsel, offered a guilty plea to the possession of the remainder of the contraband listed in the information.

La Rue was fully advised by the court of the possible six-year length of the Youth Act sentence and the record clearly shows a voluntary, intelligent and informed plea. The court accepted the guilty plea and after sentence dismissed the felony complaint.

As part of the plea bargain, the government agreed not to ask for more than a one-year sentence and would recommend against an indeterminate sentence under 18 U.S.C. § 5010(b). There was no agreement as to a recommendation of a probationary sentence under 18 U.S.C. § 5010(a). The agreement provided that the court was not "tied" to the recommendation and the court expressly informed La Rue that although both the government and La Rue's attorney had agreed to recommend against a § 5010(b) sentence, the court could still impose that sentence. Through his counsel, defendant asked for a probationary sentence under § 5010(a).

On August 3, 1973, La Rue was sentenced under the Youth Corrections Act, 18 U.S.C. § 5010(b), to the custody of the Attorney General for appropriate treatment and supervision.

La Rue then filed his first motion to correct his sentence under Rule 35, F.R.Crim.P. It was denied and he did not appeal. Thereafter, on May 15, 1974, he filed a second motion under Rule 35. After hearing, the motion was denied and he took this appeal.

La Rue was in state custody on a marijuana charge at the time of sentence, and was subject to a hold from Vallejo, California, involving conspiracy, burglary and theft of property. Proceedings were pending in Reno, Nevada, and in both the Army and the Marine Corps. The trial court explained to La Rue that the federal sentence must run consecutive to the state charges.

We do not reach the questions presented by defendants, since we hold that as to each of them there was an intelligent and knowing waiver of any right to an indictment as a part of plea bargaining, approved by the court, and a voluntary and understanding plea of guilty by each. Under these circumstances they may not attack the validity of the sentences under the Youth Corrections Act.

In Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1970), the Supreme Court stated that a plea of guilty "entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats . . . misrepresentation . . . (or improper promises)." Id. at 755, 90 S.Ct. at 1472 (emphasis added). Once such a guilty plea is entered following fair plea bargaining knowingly entered into and accepted, the defendant "may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Tollett v. Henderson, 411 U.S. 258, 267, 93 S. Ct. 1602, 1608, 36 L. Ed. 2d 235 (1973).

Here each defendant had been originally charged with a felony. Pursuant to plea bargaining, the information charging a misdemeanor was filed and the felony complaint dismissed. Each defendant, through counsel, asked for a probationary Youth Act sentence under 18 U.S.C. § 5010(a). Each was told that the court's hands were not tied in imposing a sentence under 18 U.S.C. § 5010(b).

Each defendant desired to avoid the felony charge. Each hoped to get probation under the Youth Act. (Leming in fact, originally received a probationary sentence.) Each received the major matter bargained for, the dismissal of the felony charges and a Youth Act sentence. Each defendant, represented by competent counsel, was carefully advised by the court of his or her rights and the possible term of imprisonment under the Youth Corrections Act. Neither defendant may now attack his or her sentence under the Youth Corrections Act. Young Hee Chow v. United States, 322 F.2d 64, 65-66 (9 Cir. 1963).

The trilogy of Brady v. United States, supra, 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), concerning the binding effect of a voluntary, informed plea of guilty when represented by competent counsel, by analogy, supports our decision. Tollett and Young Hee Choy directly support the decision.

The judgments are affirmed.

WEIGEL, District Judge (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.

* 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-contradictory 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 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 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 below6 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.

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 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 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 Circuit10 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

provides for and affords youthful offenders, in the discretion of the judge, not heavier penalties and punishment than are imposed upon adult offenders, but the opportunity to escape from the physical and psychological shocks and traumas attendant upon serving an ordinary penal sentence while obtaining the benefits of corrective treatment, looking to rehabilitation and social redemption and restoration. 256 F.2d at 472 (emphasis added).

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:

(T)he basic theory of (the Youth Corrections) Act is rehabilitative and in a sense this rehabilitation may be regarded as comprising the quid pro quo for a longer confinement but under different conditions and terms than a defendant would undergo in an ordinary prison. 306 F.2d at 285.

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 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.