(dissenting) :
Until today’s majority decision, our Court has never reversed, vacated or modified a discretionary order of a trial judge on a Rule 35 motion to reduce sentence. Nor has the Supreme Court ever sanctioned the disturbing of a trial judge’s discretion on such a motion.
*248The sole issue on this appeal from an order denying a Rule 35 motion to reduce sentence is whether the trial judge abused his discretion. Upon the record before us, I find not a scintilla of abuse. Every indication is to the contrary. While I recognize the commendably limited scope of the majority opinion, I nevertheless do not agree with the judgment vacating the order of the trial judge. I respectfully but emphatically dissent.
The specific question here, in reviewing the trial judge’s exercise of discretion in denying the Rule 35 motion to reduce sentence,1 is whether he took properly into account the setting aside of McGee’s conviction on Count 1 (refusal to submit to induction) some 2% years after he had been sentenced to concurrent two year terms of imprisonment on each of four counts under a statute that provided for a maximum five year term of imprisonment on each count.2
Before turning to the facts of record upon which the trial judge’s exercise of discretion must be appraised, there can be briefly stated certain fundamental legal principles which I believe should govern this appeal.
First, it is common ground that “a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.” United States v. Tucker, 404 U.S. 443, 447 (1972); accord, Gore v. United States, 357 U.S. 386, 393 (1958); United States v. Sweig, 454 F.2d 181, 183-84 (2 Cir. 1972).
Second, absent “undesirable collateral consequences”, Benton v. Maryland, 395 U.S. 784, 789 (1969), resulting from a “spill over” of evidence affecting a conviction on a count subsequently reversed or dismissed, our Court has adhered to the concurrent sentence doctrine and has declined to reverse for a new trial or to remand for resentencing where concur*249rent sentences have been imposed and later one or more,, but less than all, counts have been reversed. United States v. Ferrara, 451 F.2d 91, 97 (2 Cir. 1971), cert. denied, 405 U.S. 1032 (1972); United States v. Adcock, 447 F.2d 1337, 1339 (2 Cir.), cert. denied, 404 U.S. 939 (1971); United States v. Coppola, 424 F.2d 991, 995 (2 Cir.), cert. denied, 399 U.S. 928 (1970); United States ex rel. Weems v. Follette, 414 F.2d 417, 420 (2 Cir. 1969), cert. denied, 397 U.S. 950 (1970); cf. United States v. Febre, 425 F.2d 107, 113 (2 Cir.), cert. denied, 400 U.S. 849 (1970).
Third — and of crucial significance on this appeal — we uniformly, and without exception, have refused to disturb a trial judge’s exercise of discretion in acting on a Rule 35 motion to reduce sentence. United States v. Jones, 444 F.2d 89, 90 (2 Cir. 1971); United States v. Schipani, 435 F.2d 26 (2 Cir. 1970), cert. denied, 401 U.S. 983 (1971); United States v. Kee Ming Hsu, 424 F.2d 1286, 1291 (2 Cir. 1970), cert. denied, 402 U.S. 982 (1971); United States v. Birnbaum, 402 F.2d 24, 30, and authorities cited at 30 (2 Cir. 1968), cert. denied, 394 U.S. 922 (1969); United States v. Ellenbogen, 390 F.2d 537, 543 (2 Cir.), cert. denied, 393 U.S. 918 (1968). See 8A Moore’s Federal Practice j[ 35.02 [4] (2d ed. 1970); 2 Wright, Federal Practice and Procedure § 588 (1969).
In the light of these controlling legal principles (with which I do not understand there to be any disagreement by the majority), the following are the circumstances which strike me as relevant in appraising the trial judge’s exercise of discretion in acting on this Rule 35 motion to reduce sentence:
(1) The judge who acted on the motion to reduce sentence in July 1971 was the same Judge Murphy 3 who had presided over the three day trial of McGee in November 1968, at which McGee had testified at length on his own behalf.4
(2) Before imposing sentence on McGee in January 1969, Judge Murphy had ordered a presentenee investigation and report; he received and studied the presentence report; he heard counsel for both sides; and he also heard McGee in the exercise of his right of allocution, during the course of which at no time did McGee urge Judge Murphy not to impose a sentence of imprisonment.5
(3) By the time of the hearing on the motion to reduce sentence in July 1971, Judge Murphy knew of this Court’s 2-1 affirmance on March 31, 1970 of McGee’s conviction, 426 F.2d 691, during the course of which we said that “McGee’s stiff-necked refusal to have any dealings with the Selective Service System has caused the expenditure of countless hours by prosecutors, grand and petit jurors, and judges of the trial and appellate courts.” 426 F.2d at 699.
(4) Judge Murphy also knew in July 1971 that the Supreme Court on May 17, 1971 had affirmed, 8-1, this Court’s judgment in an opinion by Mr. Justice Marshall, 402 U.S. 479, during the course of *250which the Supreme Court repeatedly referred to McGee’s refusal to have any dealings with the Selective Service System: “[T]his hardly changes the picture of a thoroughgoing attempt to sidestep the administrative process”, 402 U.S. at 487; “Here the bypass was deliberate and without excuse”, 402 U.S. at 488; and, in conclusion, “It remains that McGee’s failure to pursue his administrative remedies was deliberate and without excuse. And it is not fanciful to think that ‘frequent and deliberate flouting of administrative processes’ might occur if McGee and others similarly situated were allowed to press their claims in court despite a dual failure to exhaust”, 402 U.S. at 491. Almost immediately following this last statement, there appears in a footnote this reference to the concurrent sentences imposed by Judge Murphy: “The two-year sentences on each of the four counts are to • run concurrently, and we decline to disturb the conviction on count IV, a minor offense indeed in comparison to the act involved in count I”, 402 U.S. at 491-92 n. 15.
(5) At the time of the hearing on the motion to reduce sentence in July 1971, Judge Murphy of course knew that McGee’s conviction on Count 1 had been set aside, with the consent of the government, in the light of Gutknecht v. United States, 396 U.S. 295 (1970),6 for Judge Murphy himself had signed the order setting aside that conviction on June 14, 1971 — exactly one month prior to entry of his order denying McGee’s motion to reduce sentence.
(6) Upon receipt of McGee’s motion to reduce sentence, Judge Murphy set it down for a hearing (although he was not required to' do so). A hearing was held at Hartford on July 6, 1971. It lasted approximately one-half hour. Among the matters specifically referred to at this hearing were the following :
(a) Judge Murphy informed McGee’s counsel that he had read his papers “and all of the letters,” 7 having taken the papers home with him prior to the hearing.8
(b) Judge Murphy noted that McGee’s Rule 35 motion to reduce sentence was not supported by an affidavit by McGee, as is usual “on motions such as this . . the affidavit is made by the defendant.” 9
(c) Judge Murphy inquired, referring to the four counts upon which McGee had been convicted, whether his recollection was correct “that Congress has made each of those violations subject to the same penalty . . . that Congress has fixed a maximum of five for each ? ” McGee’s counsel replied, “Absolutely.” 10
(d) Judge Murphy heard counsel for both sides at considerable length on the claim by McGee’s counsel that
“[I]t has generally been government policy, including Selective Service policy, not to prosecute on the so-called minor *251counts in the absence of the so-called major count.” 11
As to this,' McGee’s counsel conceded during argument before Judge Murphy that
“Whether or not it is unexceptional government policy, I make no representation. It could be that in other cases the government, for one reason or another, has chosen to prosecute in the absence of a refusal of induction.” 12
Government counsel, responding to the argument of McGee’s counsel regarding the so-called minor counts, stated that
“[S]ince the decision of the Supreme Court in [Gutknecht v. United States], which served as a basis for invalidating the conviction on count 1, the government is almost mandated to prosecute on these minor counts, because now again with the new lottery system it may be that a man can violate various provisions of the law all along and yet never be called for induction because of his high lottery number.” 13
And, finally on this issue, Judge Murphy observed that
“I think Mr. Truebner (government counsel) sort of put his finger on it. It sounds logical that if that was the policy in ’69, it couldn’t possibly be the policy now under [Gut-knecht].”14
(e) Judge Murphy also fully heard McGee’s counsel in support of his argument that “[T]here is no basis in fact for the local board’s determination that [McGee] was not qualified for CO status.” 15
(f) Finally, Judge Murphy called for a copy of the original sentencing transcript,16 reserved decision on the motion to reduce sentence17 and a week later denied the motion “in the exercise of our discretion.” 18
On this record, I find no abuse of discretion whatsoever on the part of Judge Murphy in denying the motion to reduce sentence. He did all and more than has ever been required of a federal district judge in exercising his discretion on such a motion. I find no impermissible factors having been considered; on the contrary, he took into account all relevant facts and circumstances which were brought to his attention, including the setting aside of McGee’s *252conviction on Count 1 — the factor upon which the majority opinion appears to turn.
The essential reasons for my differing with the conclusion reached by the majority may be summarized as follows.
First, in order to determine whether the trial judge properly exercised his discretion, or abused it, in denying the motion to reduce sentence, I believe that we must focus upon the record before the trial judge in July 1971 when he heard and decided the motion to reduce sentence — not upon what was in his mind in January 1969 when the original sentence was imposed. The majority opinion appears to focus upon the “initial sentencing process” and “whether he was at least in part influenced by the conviction under count 1 in setting sentence on counts 2 through 4” 462 F.2d 246, 247. All else aside, I think it is wholly unrealistic to expect a trial judge on remand to say what went on in his mind more than three years ago when he imposed sentence.19
Second, I am not persuaded by the majority’s analogy to a case (United States v. Tucker, supra) where the sentencing judge gave specific consideration to two prior convictions of a defendant (15 and 7 years before sentencing) which subsequently (17 years after sentencing) were found to have been invalid under Gideon v. Wainwright, 372 U.S. 335 (1963). With deference, I suggest there is a more apt analogy to those cases where courts have held that a sentencing judge properly exercised his discretion in considering at the time of imposition of sentence such matters as: crimes of which a defendant had been acquitted, United States v. Sweig, 454 F.2d 181 (2 Cir. 1972); crimes with which a defendant had been charged but which had been dismissed without an adjudication on the merits, United States v. Doyle, 348 F.2d 715, 720-21 (2 Cir.), cert. denied, 382 U.S. 843 (1965); evidence obtained in violation of the Fourth Amendment, United States v. Schipani, 435 F.2d 26 (2 Cir. 1970), cert. denied, 401 U.S. 983 (1971); hearsay evidence not admissible at trial, Williams v. Oklahoma, 358 U.S. 576, 584-86 (1959); and prior crimes for which a defendant had not been tried, together with hearsay evidence, Williams v. New York, 337 U.S. 241 (1949).20
Third, whether Judge Murphy properly exercised his discretion in denying the motion to reduce sentence in July 1971 should be determined in the light of all relevant factors (which I have attempted to summarize above) and not solely on the basis of whether he took properly into account the setting aside of McGee’s conviction on Count 1 (which I agree was one of the factors to be taken into account).
Coming to the majority’s mandate to the trial judge on this Rule 35 motion:
“ . . .we believe the trial judge should either have reduced the sentences on counts 2 through 4 or have given at least a summary explanation of his reasons for declining to do so ,. . .” 462 F.2d 247 (Italics added).
As for the second alternative, of course this will be simple for Judge Murphy to comply with; and the majority has made clear that compliance with this alternative will fully satisfy the mandate. “If the original sentences on the valid counts are to stand, we think the latter is the minimum necessary to impart integrity to those sentences . . .” Id.
It is with the first alternative that I most emphatically disagree. To say that “. . . on a Rule 35 motion, we believe *253the trial judge should . . . have reduced the sentences on counts 2 through 4,” even when stated as an alternative, constitutes to that extent an attempt at appellate review of sentencing. With deference I must say that in my view that is none of our appellate business. To some trial judges, such an alternative mandate might be taken as a nudge to reduce sentence. I do not believe that Judge Murphy is one to be easily nudged.
Paraphrasing Mr. Justice Blackmun’s dissent in United States v. Tucker, supra, 404 U.S. at 452:
“On remand the case presumably will go once again to Judge [Murphy], and undoubtedly the same sentence once again will be [adhered to]. Perhaps this is all worthwhile and, if so, I must be content with the Court’s disposition of the case on general principles. I entertain more than a mild suspicion, however, that this is an exercise in futility, that the Court is merely marching up the hill only to march right down again, and that it is time we become just a little realistic in the face of a record such as this one.” (Blackman, J., dissenting in an opinion in which The Chief Justice joined).
I would affirm Judge Murphy’s denial of the Rule 35 motion to reduce sentence on the ground that there was no abuse of discretion and the sentence, well within statutory limits, is not subject to appellate review.21
. In order more precisely to focus upon the sole issue that is before us, it is important to bear in mind wliat is not involved. We are not called upon to review an order denying a motion pursuant to 28 U.S.C. § 2255 to vacate or set aside a sentence under Counts 2, 3 and 4, as in United States v. Tucker, 404 U.S. 443 (1972), and Gore v. United States, 357 U.S. 386 (1958); such motion was made by McGee, was denied by Judge Murphy and no appeal was taken. Nor are we called upon to review an order denying a motion pursuant to Rule 35, to correct an illegal sentence under Counts 2, 3 and 4, as in United States v. Sweig, 454 F.2d 181 (2 Cir. 1972).
We are called upon to review the denial of McGee’s motion pursuant to Rule 35 to reduce sentence, and that is all. The specific relief requested in this branch of his motion was “an order pursuant to Rule 35 reducing petitioner’s sentence of two years imprisonment on each Count of the indictment and permitting him to serve this sentence on probation.” The District Court of course had no power, once McGee started to serve his sentence on July 6, 1971, to permit him to serve any part of it on probation, United States v. Ellenbogen, 390 F.2d 537, 543 (2 Cir.), cert. denied, 393 U.S. 918 (1968), and Judge Murphy properly did not act on the probation request.
What is before us, therefore, is just what the majority has correctly stated:
“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.” 462 F.2d 245.
These distinctions between the several procedures for attacking sentence are not matters of semantics. They go to the heart of this most important aspect of the administration of federal criminal justice, including the proper relationship between trial and appellate judges in the sphere of sentencing.
. McGee was indicted, convicted and sentenced under Section 12(a) of the Military Selective Service Act of 1967, 62 Stat. 622, as amended, 50 U.S.C.App. § '462(a) (Supp. Y, 1964), for refusing to submit to induction, in violation of § 462 (a) and 32 CFR 1632.14 (Count 1) ; for refusing to report for a physical examination, in violation of § 462 (a) and 32 CFR 1628.16 (Count 2) ; for refusing to have in his possession a valid classification notice, in violation of § 462(a) and 32 CFR 1623.5 (Count 3) ; and for refusing to return to his local board a current information questionnaire relevant to his draft status, in violation of § 462(a) and 32 CFR 1641.2(b) and 32 CFR 1641.7(b) (Count 4).
The maximum penalty under each of these four counts is five years imprisonment and/or a $10,000 fine.
. By July 1971, Judge Murphy had become a Senior United States District Judge; and at the time of the hearing on McGee’s motion to reduce sentence, Judge Murphy was sitting by designation in the District of Connecticut, helping that beleaguered District by trying criminal cases.
. Trial Transcript 94-143, 183-218 (Nov. 8 and 12, 1968).
. Sentencing Transcript 290-295 (Jan. 16, 1969). In a memorandum order of November 17, 1971, Judge Murphy made available the presentence report to McGee’s counsel on appeal on the assumption that “his hopeful purpose is to buttress his appeal from our order denying his application to reduce or modify defendant’s sentence after the Supreme Court affirmed the conviction (McGee v. United States, 402 U.S. 479 (1971)) and after we vacated the judgment of conviction on Count One on the authority of Gutknecht v. United States, 396 U.S. 295 (1970).”
. Gutknecht was decided by the Supreme Court on January 19, 1970 — more than two months before our decision in McGee, 420 F.2d .691, and sixteen months before the Supreme Court’s decision in McGee, 402 U.S. 479.
. Rule 35 Motion Transcript 2 (July 6, 1971) (hereinafter, “Motion Transcript”). This transcript was not included in the record on the instant appeal. It was obtained by the Court subsequent to the argument. See note 21 infra.
. Id. at 10.,
. Id. at 9.
. Id. at 3.
. Id. at 3. Counsel for both sides, as well as Judge Murphy, referred to the Selective Service publication, Legal Aspects of Selective Service 47 (1969). See majority opinion, 462 F.2d 246.
With respect to Count 3 of the indictment in the instant case (refusing to have in his possession a valid classification notice), it should be noted that at page 47 of the publication referred to above a distinction is drawn between registrants who turned in “draft” cards to various public officials and were not prosecuted under Section 12(a) of the Military Selective Service Act of 1967 but were processed administratively by the local boards — “as contrasted to those who burned cards’’ (Italics added). In the instant case, as both our Court, 426 3T.2d at 693, and the Supreme Court, 402 U.S. at 481, noted, McGee wrote to the President of the United States enclosing charred remnants of his draft cards.
. Motion Transcript 4.
. Motion Transcript 14. Compare majority opinion, 462 F.2d 246 n. 4.
. Motion Transcript 16.
. Id. at 7. It is clear that McGee’s “absence of a basis in fact” claim was fully presented to Judge Murphy at the critical time with which we are concerned on this appeal, i. e. the argument of the motion to reduce sentence.
. Motion Transcript 15. Counsel informed us at the time of argument of the appeal that the original sentencing transcript had been furnished to Judge Murphy.
. Motion Transcript 16.
. Majority opinion, 462 F.2d 245 n. 1, supra.
. At the hearing in July 1971 on the motion to reduce sentence, Judge Murphy stated candidly that “I have a blank recollection” as to what McGee said at the time of sentencing. Motion Transcript 15. I think the recollection of most trial judges would be the same 2% years after the event.
. See Judge Hays’ summary of these authorities and the rationale for the rule that such matters may and should be considered by the sentencing judge in the exercise of his “very broad discretion in imposing any sentence within the statutory limits.” United States v. Sweig, supra, at 183-84.
. I am disturbed by certain aspects of appellate practice by which the decision in this case has been reached.
First, in critical respects the record upon which this ease was briefed and argued before us was incomplete. For example, the transcript of the July 6, 1971 hearing before Judge Murphy on the motion to reduce sentence was not before us at the time of argument. It should not be necessary for a judge of this Court to have to track down in the back woods of Vermont such a vital portion of the record. If this appeal had been prosecuted on an expedited schedule, it would have been one thing; but the record shows that it proceeded at a leisurely pace, counsel for appellant having obtained three successive monthly extensions for the filing of his main brief and a further extension for his reply brief. Under the circumstances, I see no justification for appellant’s counsel not having such a vital portion of the record before us at the time of argument, assuming that he intended the Court to decide the appeal on the issue upon which the majority opinion turns. This leads me to the other aspect of appellate practice which disturbs me.
Second, the majority opinion appears to turn on an issue which was neither briefed nor argued before us, i. e. whether Judge Murphy abused his discretion in denying the motion to reduce sentence without either having reduced the sentences on counts 2 through 4 in view of the setting aside of the conviction on count 1, or having given an explanation for declining to do so. Certainly, the government did not understand this to be appellant’s claim, for it states in its brief that “Appellant quite properly does not argue that the setting aside pursuant to the Government’s consent, of the conviction on Count I (failure to submit to induction) requires a reduction of his sentence on the other counts.” (Government Brief 3, footnote*). And I think that appellant’s oral argument and well prepared brief may fairly be said to have been chiefly concerned with the contention that Judge Murphy abused his discretion in failing to give weight to the character and actions of McGee and the statements of those who wrote in his behalf, plus the argument that other judges have granted probation in similar cases — certainly not grounds for our finding an abuse of discretion.
In short, I think it is unfortunate that a decision of first impression — where our Court for the first time is vacating a discretionary order of a trial judge on a motion to reduce sentence — should be based on a record which is incomplete and should turn on an issue neither briefed nor argued before us.