United States v. Michael Witt McCord

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*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 *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

Hypothesizing that there has been a uniform sentencing procedure employed by sentencing judges when Jehovah’s Witnesses have been found guilty of having refused to perform the alternative service their Selective Service Boards have ordered them to perform, appellant would have us take judicial notice that this hypothesis is a Second Circuit fact-pattern, and would have us conclude that he was unconstitutionally singled out for harsher treatment than the Second Circuit’s hypothetical sentencing procedure permitted. He arrives at his claim of personal discrimination by speculating that he received a one year sentence because he is not a Jehovah’s Witness or a conscientious objector on account of his religious beliefs, but is, rather, a conscientious objector within the meaning of the tests in United States v. Seeger, 880 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965) and Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970).

Indeed, a sentencing procedure adopted as binding upon a full bench of judges of a multi-judge district court which in fact discriminates against Welsh-type conscientious objectors in relation to religiously oriented conscientious objectors would be difficult to justify in light of the Fifth Amendment’s guarantee against arbitrary and unreasonable distinctions. Appellant, however, has failed to convince us that there is a discriminatory sentencing procedure in this Circuit which would bind all judges to follow it in each and every case, and he has also failed to make any showing that, had he been a Jehovah’s Witness, Judge McLean would have imposed the sentence which he suggests to the Court the Court should have imposed upon him.

The appellant’s statistical research does, in fact, tend to show that many federal district judges acting within their broad discretionary powers have been increasingly lenient in the sentences they have handed down in Selective Service cases. The statistics also show the Jehovah’s Witness violators have regularly been included in the group toward whom an increasing number of judges have shown a growing lenience. Certainly this does not prove the existence of a uniform federal judicial policy actuated by religious discrimination in favor of a particular religious sect. And, of course, there is not a scintilla of evidence to show that Judge McLean would have given McCord a different sentence if McCord had been a Jehovah’s Witness instead of a Welsh-type conscientious objector.

Finally, we point out that McCord was not only charged with having unlawfully terminated his civilian employment after following it for a year but also charged with failure to possess his Selective Service Registration Card and failure to possess his Selective Service Classification card after deliberately divesting himself of them. He pleaded guilty to all three of these offenses and was sentenced to concurrent terms of one year upon each of the three counts. Judge *21McLean made a specific reference to that fact during the colloquy at the hearing on defendant’s motion for a reduction of sentence and in his statement when denying the motion.3 It would appear, therefore, that McCord is not in the same position as defendants prosecuted solely for refusing to obey Selective Service Board alternative work orders. His situation is not in any way comparable to those of other registrants who, while refusing to obey orders of their Selective Service Boards, have nevertheless not seen fit to refuse to carry the prescribed documents of identification.

Although it has been the practice in the Second Circuit not to review the propriety of sentences imposed by district judges if imposed within permissible statutory limits we have recognized here that sentencing procedures are not immune from scrutiny under the due process clause,4 and so we have given full consideration to the points presented to us even though the sentence imposed in this case is well within the permissible limits.

Appellant requests us to order that appellant’s sentence be vacated, but it has been suggested that we might remand to the district court for the purpose of having the sentencing judge review the material before him and of permitting the presentation to him of additional material, all as it might bear upon the constitutional issue of whether the present one year sentence of imprisonment is an unconstitutionally discriminatory one.

Relevant official and unofficial statistics offered as bearing upon this alleged discrimination were presented to the sentencing judge and have been presented to us. There is no merit in ordering such a remand.

. When sentence was imposed Judge McLean stated:

I have carefully considered this case. I have read every word of the doeuments that have been sent to me by the defendant’s attorney, by other people.
I feel very sorry for this defendant. I may say that I feel more sorry for his parents, but I hope you will appreciate I have a responsibility which I cannot overlook and this country cannot survive if every man is free to decide for himself which laws he is going to obey and which laws he is going to disobey. To permit that would be anarchy. This defendant deliberately and intentionally disobeyed the Selective Service Act with full awareness of the possible consequences. Whatever his motives may be and whatever he thinks his conscience dictates, this Court cannot condone such conduct.
I have struggled with myself to decide upon the sentence and I have decided to impose a sentence which, I think, is very lenient.
The sentence of this Court is that the defendant be imprisoned for a term of one year on each count for which he pleaded guilty, sentences to run concurrently.

. This affidavit was also before the court in Meyers v. United States, 446 F.2d 37 (2 Cir. 1971). See page 39. In Meyers our court affirmed an Eastern District judge’s sentence of Sy2 years of imprisonment.

. Upon denying the Rule 35 motion Judge McLean stated as follows :

As far as the defendant’s constitutional point is concerned, it is my opinion that that is completely without merit. This man pleaded guilty to three different crimes, and the sentence, in my opinion, was a perfectly valid sentence.
Now, insofar as the motion is addressed to my discretion and seeks to induce me to change my mind, I want to assure Mr. Mirsky that I did not overlook this point when this defendant was before me for sentence. Not only did Mr. Mirsky mention it in his argument, but the presentence report reported to me that the defendant had indicated, perhaps one might think somewhat belatedly, that he was willing to work for the Legal Aid after all, provided that the Court directed him to do it, instead of the Selective Service Board. So the point was fully made and considered.
I do not impose sentence in criminal cases lightly. I do it after full consideration. I did so in this case, in my opinion, under the circumstances of this case. The sentence which I imposed was a fair and just sentence; and I therefore decline to change it.
The motion is in all respects denied.

. Williams v. People of State of New York, 337 U.S. 241, 252, n. 18, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949).