Carson S. Kee v. United States of America, Willie J. Johnson v. United States

PER CURIAM: We have considered the contention of insufficiency of the evidence, and we conclude the evidence was sufficient, though not by a wide margin, to support a conviction of unauthorized use of an automobile (22 D.C.Code § 2204). We are more concerned with the sufficiency of the evidence to support the convictions for robbing the complainant of two dollars in violation of 22 D.C.Code § 2901, and for transporting a stolen vehicle across state lines in violation of 18 U.S.C. § 2312 (1964). Obviously more proof is necessary for the Dyer Act charge, dependent on an intent that requires a stealing, than for an unauthorized use charge. The Government contends the point is moot because the trial judge sentenced the appellants pursuant to the Federal Youth Corrections Act, 18 U.S.C. § 5010(b) (1964), which necessarily means concurrent sentences. Compare Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). The question is not necessarily appropriate for a flat rule. There may well be a significant difference between a record of three felonies (including robbery) and a record of one felony, in regard to what appellants will receive in terms of treatment and supervision, and also early conditional release under 18 U.S.C. § 5017 (1964). We think the interest of justice which controls appellate disposition, see 28 U.S.C. § 2106 (1964), has particular vitality when the future of youth offenders is at stake. Accordingly, we enter judgment of affirmance of the sentence as a judgment entered following a conviction of unauthorized use, 1 but limited to that conviction. So ordered. Footnotes [1] Since the point was not contested and may become academic in the light of future release, we do not consider the question arising from the fact that there is a possibility of a 6-year period prior to appellants’ unconditional discharge, see 18 U.S.C. .§ 5017 (c), although the maximum penalty for unauthorized use is 5 years. Compare In re Lee’s Petition, 232 F.Supp. 415 (E.D.N.Y.1964).