Vincent Francis McGee Jr. v. United States

462 F.2d 243, 1972 U.S. App. LEXIS 10018
CourtCourt of Appeals for the Second Circuit
DecidedApril 18, 1972
Docket484, Docket 71-1840
StatusPublished
Cited by107 cases

This text of 462 F.2d 243 (Vincent Francis McGee Jr. v. United States) 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
Vincent Francis McGee Jr. v. United States, 462 F.2d 243, 1972 U.S. App. LEXIS 10018 (2d Cir. 1972).

Opinions

FRIENDLY, Chief Judge:

This appeal is an epilogue to the proceedings detailed in the previous opinions of this court and the Supreme Court affirming Vincent Francis McGee’s conviction on four counts of violating the Selective Service Act of 1967, 50 U.S.C. App. § 451 et seq. These were refusing to submit to induction (Count 1), failing to report for a physical examination (Count 2), failing to possess a valid notice of classification (Count 3), and failing to return a current information questionnaire to his local board (Count 4). See 426 F.2d 691 (2 Cir. 1970), aff’d, 402 U.S. 479, 91 S.Ct. 1565, 29 L.Ed.2d 47 (1971). It suffices here to say that this court held and the Supreme Court agreed that although McGee had presented a valid claim to his local board for exemption as a conscientious objector, his conviction on Count 1 had to be affirmed because of his failure to appeal the local board’s 1-A classification; that in consequence the convictions on Counts 2 and 3 should be affirmed without any need to consider what the result would be if the 1-A classification were improper; and that “[i]n light of the concurrent sentences [of two years imprisonment] there is no need to consider the conviction under Count 4 under the circumstances here presented,” 426 F.2d at 700.

Before malting the motion giving rise to this appeal, McGee, who had remained at liberty during the appellate proceedings, moved pursuant to 28 U.S.C. § 2255 to vacate the conviction and sentence under Count 1, charging refusal to submit to induction, on the ground that he had been unlawfully declared delinquent and accelerated for induction. See Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970). The district court granted the motion. McGee then moved, on June 29, 1971, purportedly pursuant to 28 U.S.C. §§ 1651 and 2255, to set aside the judgments and sentences under Counts 2, 3 and 4 or, in the alternative, for a new trial on these counts under F.R.Cr.P. 33 or, in the alternative, to suspend or reduce his sentence under these counts and permit him to serve his sentence on probation, F.R.Cr.P. 35. The application was supported by an impressive collection of letters from officials of Union Theological Seminary where McGee had studied, another distinguished educator, business men with whom McGee had worked as executive director of Business Executives Move for Vietnam Peace (BEM), a United States Senator, and a Representative. All attested to McGee’s deep personal sincerity, his high character and principles, and his determination to work in an orderly [245]*245and constructive manner to end this country’s involvement in Vietnam. The judge entertained the motion but denied it on July 13, 1971, in a brief ruling set forth in the margin.1 McGee had begun serving his sentence on July 6. On this appeal only the denial of the motion to reduce sentence is pressed. McGee contends that this unexplained refusal was an abuse of discretion.

We have only recently reaffirmed that “[a] sentencing judge has very broad discretion in imposing any sentence within the statutory limits . . ” United States v. Sweig, 454 F.2d 181, 183-184 (2 Cir. 1972). See also Gore v. United States, 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). We have no intention of deviating from this general principle. Appellate courts, though, have gone so far as to scrutinize the information considered by the trial judge in the sentencing process. In Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948), the Court deemed unconstitutional a sentencing proceeding in which a “prisoner was sentenced on the basis of assumptions concerning his criminal record which were materially untrue.” See also United States v. Malcolm, 432 F.2d 809, 815-816 (2 Cir. 1970). Similarly, the Court has only recently affirmed an appellate order vacating a sentence “founded at least in part upon misinformation of constitutional magnitude” — specifically, two prior convictions unconstitutional in light of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). United States v. Tucker, supra, 404 U.S. at 447, 92 S.Ct. at 589. Implicit in these decisions is the proposition that a trial judge, in exercising his sentencing discretion, may not rely significantly upon false evidence of prior convictions or upon evidence of prior convictions which were illegally obtained.

We believe that this case presents a problem not without some analogy. We deal here with a conviction on four counts which were prosecuted in one trial and upon which identical concurrent sentences were simultaneously imposed. However, the conviction under one of those counts has now been determined to have been unlawful. The trial judge’s original sentencing determination with respect to counts 2 through 4 could have been influenced by appellant’s conviction under count 1 — just as evidence of a pri- or conviction might influence a sentencing judge on a subsequent one.2 If such were in fact the case, appellant’s initial sentences under counts 2 through 4 would require reconsideration.

In Burke and Tucker, it was plain from the record that “the sentencing judge gave specific consideration to the [defendant’s] previous convictions before imposing sentence upon him.” United States v. Tucker, supra, at 447, 92 S.Ct. at 592 (footnote omitted). See also Townsend v. Burke, supra, 334 U.S. at 739-740, 68 S.Ct. at 1252. Here it is im[246]*246possible to determine from the judge’s remarks in imposing sentence, set out in the margin,3 whether he was at least in part influenced by the conviction under count 1 in setting sentence on counts 2 through 4. However, certain factors indicate that this is quite probable. The trial judge imposed concurrent sentences of equal length, two years, on all four counts. Yet an examination of the prior opinions in this case will show that count 1 was always regarded as the most serious of the four. See 426 F.2d at 705 (dissenting opinion of Feinberg, J.).

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Bluebook (online)
462 F.2d 243, 1972 U.S. App. LEXIS 10018, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vincent-francis-mcgee-jr-v-united-states-ca2-1972.