JAMES HUNTER, III, Circuit Judge:
Ellen Buechler pleaded guilty to one count of embezzling $262.12 from a federally insured bank. She was sentenced under the Federal Youth Corrections Act, 18 U.S.C. § 5010(a), to a five-year suspended sentence, three years of probation, and — as a condition of probation — she was ordered to make restitution of some $1,989.35 to the bank. In a motion to correct sentence under Fed.R.Crim.P. 35,
On June 13, 1975, Ellen Buechler, a former employee of the Pilgrim State Bank, appeared before the District Court to enter a plea of guilty to a one-count information charging her with willful misapplication of bank funds by an employee of a federally insured bank in violation of 18 U.S.C. § 656. The district judge explained the information to her:
Brief for Appellee, Exhibit A, at 6. After the court explained Buechler's rights, she repeated her intention to plead guilty to that information.
The judge then inquired about a plea bargain:
Id. at 11. The court then determined that no other agreements, promises, or bargains had been made, and Buechler's guilty plea was accepted.
Sentencing occurred on February 26, 1976. The court decided to sentence Buechler, age 20, under the Federal Youth Corrections Act, 18 U.S.C. § 5010(a):
Brief for Appellants at 15a-16a. Thus, despite the fact that Buechler pleaded guilty to embezzling only $262.12, she was ordered to restore nearly $2,000 — an amount she was not even given a chance to dispute.
Buechler filed a motion to correct sentence on August 18, 1976—174 days after sentencing. The district court denied relief, and this appeal followed. Buechler argues first that the Federal Youth Corrections
The purpose of the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5026, "is the eventual rehabilitation of youthful offenders ... in line with the modern trend in penology which accents rehabilitation, rather than punishment." Brisco v. United States, 246 F.Supp. 818, 819 (D.Del.1965) (Layton, J.), aff'd, 368 F.2d 214 (3d Cir.1966). Buechler characterizes the imposition of restitution as "punitive" and argues that Congress could not have intended it as a sentencing alternative under the rehabilitation act.
The Act's sentencing provision, section 5010, presents the trial court with a variety of options. If the court decides that commitment would not prove fruitful, it can suspend sentence and place the youth on probation, § 5010(a); it may sentence the youth to a period of no more than six years in the custody of the Attorney General for treatment and supervision, § 5010(b); it may sentence the youth to an indeterminate period of such custody, § 5010(c); it may sentence the youth under other applicable penalty provisions, § 5010(d); and finally, it may commit the youth to sixty days' custody for further observation and study, § 5010(e). These options enlarge the discretion "of federal trial courts in order to permit them to sentence youth offenders for rehabilitation of a special sort." Dorszynski v. United States, 418 U.S. 424, 436, 94 S.Ct. 3042, 3049, 41 L.Ed.2d 855 (1974).
The first court to consider the propriety of combining pecuniary exactions with the sentencing options expressly provided in section 5010 was United States v. Hayes, 474 F.2d 965 (9th Cir.1973). The Hayes court held that the trial court could not impose a fine upon a defendant committed to custody under section 5010(b):
Id. at 967. The Fifth Circuit followed this analysis in Cramer v. Wise, 501 F.2d 959 (5th Cir.1974), holding that a defendant committed to custody under section 5010(b) could not also be fined.
In United States v. Mollet, 510 F.2d 625 (9th Cir.1975), the Ninth Circuit, with no new analysis, applied the reasoning of Hayes to defendant who had been placed on probation under section 5010(a) — as was Buechler in the case sub judice — rather than committed under section 5010(b). The Mollet court held fines unavailable in the case of defendants sentenced under section 5010(a). Shortly thereafter, the Ninth Circuit, in United States v. Bowens, 514 F.2d 440 (9th Cir.1975), extended the holding of Mollet and proscribed the imposition of a restitution order and fine in conjunction with a sentence of probation under section 5010(a). But more recently, the Ninth Circuit distinguished Bowens and upheld a restitution order — apart from a fine — as a condition of probation. United States v. Hix, 545 F.2d 1247 (9th Cir.1976) (per curiam).
Other courts have not appeared so doubtful about trial courts' authority to impose fines and restitution orders in conjunction with sentences under § 5010. In United States v. Prianos, 403 F.Supp. 766 (N.D.Ill.1975), the court rejected the Ninth Circuit's approach in Hayes, at least with respect to section 5010(a). The Prianos court noted that the term "probation" as used in section 5010(a) is nowhere defined in the Federal Youthful Offenders Act; indeed, the Act, in section 5023(a), expressly provides that nothing in the Act should be construed to
In a similar vein, the court in United States v. Kitson, No. 74-211-Orl.-Cr-R (M.D.Fla., May 15, 1975), ruled that the Fifth Circuit's holding in Cramer — that a youthful offender could not be fined in conjunction with commitment under section 5010(b) — did not preclude imposition of a fine as a condition of probation under section 5010(a). The court relied not only on the fact that all probation orders are governed by section 3651, but also its conclusion that prohibition of monetary exactions would "diminish the liberal use of the probation alternative." Id. at 2.
The Fourth Circuit, too, has upheld the imposition of fines as a condition of probation under section 5010(a). In United States v. Oliver, 546 F.2d 1096 (4th Cir.1976), that court refused to follow Hayes and Cramer, observing that the Act does not by its terms prohibit monetary fines.
We find the reasoning of Prianos and Oliver most persuasive. It is clear that section 5010(a) has not expressly precluded the imposition of a reimbursement order or a fine as a condition of probation. Because the Federal Youth Corrections Act nowhere defines or explains "probation" — and in light of the express denial, contained in section 5023(a), of alterations in the rest of the sentencing chapter — the "probation" provided for in section 5010(a) must be governed by the general probation provision, section 3651. Section 3651 expressly permits probation to be conditioned upon restitution orders and fines.
Further, we believe that the Federal Youth Corrections Act was designed to increase the flexibility of the choices available to a sentencing court. If in the court's discretion, restitution or a fine, in combination with probation and various other orders, will best serve the cause of rehabilitating the youthful offender, then we should not strain our reading of the Act to preclude such an option.
In this case we are faced with a restitution order.
Buechler also argues that the court below denied her due process of law by refusing to hear her objections to the amount she was ordered to restore to the bank. The Government contends that we have no jurisdiction to hear that claim. Motions under Rule 35 to correct a sentence imposed in an illegal manner — as opposed to a sentence which itself is illegal — must be made within 120 days of sentencing; Buechler's motion was made 174 days after sentencing, and it did not contain this due process argument. For both those reasons, insists the Government, we cannot consider Buechler's second claim. We need not deal either with Buechler's claim or the Government's objection, however, because it is plain on the face of the record that the sentence imposed was, in and of itself, illegal.
The probation statute, 18 U.S.C. § 3651, provides that among the conditions of probation, the defendant may "be required to make restitution or reparation to aggrieved parties for actual damages or loss caused by the offense for which conviction was had." (Emphasis added.) In United States v. Follette, 32 F.Supp. 953, 955 (E.D.Pa.1940), Circuit Judge Maris, sitting as trial judge, interpreted that language to mean that the court lacked power to order restitution in an amount greater than that involved in the particular offense for which defendant was indicted and convicted.
For the foregoing reasons, the sentence will be vacated and the case remanded for re-sentencing in conformity with this opinion.
We also need not address the question whether restitution in an amount exceeding that involved in the count to which a guilty plea is entered may be imposed as a condition of probation, where the defendant explicitly agrees to it as one of the terms of a plea bargain in a multiple count indictment.