United States v. Michael Witt McCord

466 F.2d 17, 1972 U.S. App. LEXIS 9296
CourtCourt of Appeals for the Second Circuit
DecidedMay 30, 1972
Docket670, Docket 71-2187
StatusPublished
Cited by10 cases

This text of 466 F.2d 17 (United States v. Michael Witt McCord) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Michael Witt McCord, 466 F.2d 17, 1972 U.S. App. LEXIS 9296 (2d Cir. 1972).

Opinions

WATERMAN, Circuit Judge:

On September 17, 1971, the appellant, Michael Witt McCord, entered a plea of guilty in the United States District Court for the Southern District of New York to all three counts of an indictment charging him with violations of the Military Selective Service Act of 1967, 50' App., U.S.C. § 451 et seq. Count one charged that he, in violation of 50 App. § 462(a), unlawfully terminated the civilian employment to which he had been assigned after his Selective Service Board had classified him as a conscientious objector; the remaining two counts charged that, in violation of the same statute, he failed to possess his Selective Service Classification Card and failed to possess his Selective Service Registration Card. He was sentenced by Judge McLean to concurrent terms of one year imprisonment on each of the three counts. Appellant, on November 11, 1971, moved, pursuant to Rule 35, Fed.R.Crim.P. and 28 U.S.C. § 2255 and § 1651(b), for a reduction of the sentence. He sought to have the sentence of imprisonment vacated, and it was suggested to the sentencing judge that appellant be permitted to serve that one year sentence on probation upon condition that he perform one year of civilian work of national importance. Judge McLean denied the motion and McCord appeals from that denial.

Appellant’s attack on the denial of his motion is two-fold. First, he argues that the district court’s failure to grant him the sentence which he desires was an abuse of the discretion traditionally afforded to trial judges to determine the type and extent of punishment. Second, he contends that there are statistics to show that there has been an accepted sentencing procedure whereby Jehovah’s Witnesses who are prosecuted for disobeying draft board orders to do civilian work of national importance are regularly granted probationary sentences by sentencing judges upon the condition that they perform the civilian work they would not do when ordered by draft boards, and that the existence of this procedure requires that other prosecuted violators, whose relevant beliefs are similar to those of Jehovah’s Witnesses, should receive the same benefit. Inasmuch as Judge McLean did not offer appellant the same opportunity that appellant claims other judges have offered other sentenced conscientious objectors, he argues that he has been denied the equal protection of law guaranteed him by the U. S. Constitution and that his right to due process of law has been violated. We affirm the decision of the court below denying appellant’s motion.

It is axiomatic that federal district judges are afforded vast discretion in the imposition of sentence and “that a sentence imposed by a federal district judge, if within the statutory limits, is generally not subject to review.” United States v. Tucker, 404 U. S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592, 596 (1972), accord, Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Sweig, 454 F.2d 181, 183-184 (2 Cir. 1972); United States v. Jones, 444 F.2d 89, 90 (2 Cir. 1971); 2 C. Wright, Fed[19]*19eral Practice and Procedure, § 588 at p. 576 (1969). Nevertheless, despite the extreme reluctance of appellate courts to interfere in matters best left to the sound discretion of the district court such as the type and extent of punishment imposed after a plea of guilty, it has happened that in rare instances, as pointed out by appellant, challenges to the denial of Rule 35 motions have been sustained upon appeal. In United States v. Tucker, swpra, the Supreme Court remanded for consideration a case in which the sentence was “founded at least in part upon misinformation of constitutional magnitude.” 404 U.S. at 447, 92 S.Ct. at 592, 30 L.Ed.2d at 596. In a recent case this court remanded after an appeal from the denial of a Rule 35 motion for the filing by the sentencing judge of a statement explaining his reasons for the denial when it was “not improbable that the initial sentencing process with respect to the valid counts was to some extent affected by the conviction on the far more serious count 1, which was illegally brought.” McGee v. United States, 462 F.2d 243 (2 Cir. 1972). Moreover, as the appellant points out, there appears to be a growing body of precedent supporting appellate review of sentencing in the few instances where an appellate court is convinced that the district court has manifestly abused its discretionary power. Yates v. United States, 356 U.S. 363, 366-367, 78 S.Ct. 766, 2 L.Ed.2d 837 (1958); United States v. McCoy, 139 U. S.App.D.C. 60, 429 F.2d 739 (1970); United States v. Daniels, 446 F.2d 967 (6 Cir. 1971), 2 C. Wright, Federal Practice and Procedure, § 533 at p. 451 (1969).

The maximum statutory penalties which Congress prescribed and which Judge McLean might have imposed for each of appellant’s violations is five years imprisonment and a $10,000 fine. Hence appellant could have been sentenced to a total of fifteen years imprisonment and to $30,000 in fines. In view of this congressional concern it is obvious that the imposition of a one year sentence by the trial judge is not a manifest abuse of a trial court’s discretion. The record demonstrates that when sentence was imposed Judge McLean fully considered all the circumstances of the ease1 and we cannot find the slightest hint of any abuse of discretion. Moreover, we decline to evaluate the sentence imposed here by comparing it to any claimed standard of lenience allegedly shown by other federal district courts in cases represented to be similar to the one before us.

Appellant’s challenge to the denial of his motion for a reduction of sentence, however, does run deeper than the simple charge that Judge McLean abused his discretion. Appellant also contends that a “special sentencing procedure has been in force in this circuit and elsewhere in the country whereby Jehovah’s Witnesses in exactly the same position as McCord are given the opportunity to escape confinement altogether by doing civilian work.” It is McCord’s position [20]*20that, although he is not a Jehovah’s Witness, the mandates of his conscience are similar to those of Jehovah’s Witnesses and that, like them, he can obey the order of a court to do civilian alternate service, but that he cannot conscientiously obey a similar directive of his Selective Service Board.

In support of the motion for reduction of sentence appellant handed the judge an affidavit of a reputable attorney that from 1967 to July 28, 1970 twenty one acknowledged Jehovah’s Witnesses who had been prosecuted in the Eastern District of New York for Selective Service violations had been sentenced to terms of probation in lieu of prison upon the condition of the probation that they perform some form of alternative civilian work service.2

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Bluebook (online)
466 F.2d 17, 1972 U.S. App. LEXIS 9296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-witt-mccord-ca2-1972.