461 F.2d 1265 - United States v. Kyle — 461 F.2d 1265

¶1Joseph P. Dyer, Arlington, Va. (Court-appointed counsel) [Siciliano, Daly, Ellis & Sheridan, Arlington, Va., on brief], for appellant.

¶2Justin W. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., on brief), for appellee.

¶3Before HAYNSWORTH, Chief Judge, and WINTER and FIELD, Circuit Judges.

¶4PER CURIAM:

¶5We find no error in defendant’s conviction of kidnaping with intent to commit rape in violation of 18 U.S.C.A. § 1201 *

¶6Affirmed.

¶7 AA'e expressly reserve decision on defendant’s contention that the district court erred in sentencing him as an adult when it failed first to make an express finding that he, being 19 years old, would not derive benefit from being sentenced under the Federal Youth Corrections Act, 18 U.S.C.A. § 5005, et seq. See, 18 U.S.C.A. § 5010(d) ; United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722 (1970). If we were to adopt such a rule, we would be obliged to afford the district court the opportunity to make such a finding and thereafter to resentence. The circumstances and gravity of the crime of which defendant was convicted, related crimes of which he has been found guilty or of which his guilt is not contested, and the record of previous unsuccessful attempts at rehabilitation are such that it is inconceivable to us that defendant could be found to be a fit candidate for treatment under the Act. Thus, this case is not a proper vehicle to determine if we should follow Waters, or even if, as the government contends, we impliedly rejected Waters in United States v. Wilson, 450 F.2d 495 (4 Cir. 1971).