with whom MEHAFFY and STEPHENSON, Circuit Judges, join (dissenting).
I respectfully dissent. I would affirm the trial court’s order denying relief under Rule 35. The sentence of five-years imprisonment was imposed upon the defendant following the acceptance of his voluntary plea of guilty to a charge of failure to submit for induction in violation of 50 U.S.C. App. § 462. This is the maximum penalty provided for the offense committed.
The majority opinion concedes that this court, as well' as others, has repeatedly held that a sentence imposed by a district judge which is within statutory limits is not subject to review. In Gu-rera v. United States, 40 F.2d 338, 340-341 (8th Cir. 1930), this court held:
“If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute. If Congress had intended to change that rule in regard to violations of the liquor laws, we would have expected a very clear and definite expression of that intent and a workable expression of the rules which should guide the trial courts in assessing punishments and the appellate courts in reviewing such assessments.”
The Supreme Court in the recent case of United States v. Tucker, 404 U.S. 443, 447-448, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972), holds:
“It is surely true, as the government states, that a trial judge in the federal judicial system generally has wide discretion in determining what sentence to impose. . . . The government is also on solid ground in asserting that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review. Gore v. United States, 357 U.S. 386, 393 [78 S.Ct. 1280, 1284, 2 L.Ed.2d 1405]. Cf. Yates v. United States, 356 U.S. 363 [78 S.Ct. 766, 2 L.Ed.2d 837].”
The Tucker Court goes on to hold that a. remand for resentencing was proper because the record showed that the trial court at the time of the sentencing was not aware of the fact that two prior convictions of the defendant called to its attention were constitutionally infirm because the defendant was not represented by counsel in such eases.
Subsequent to Tucker this court in Hood v. United States, 469 F.2d 721, 722 (8th Cir. 1972), summarily affirmed the trial court’s denial of a motion to reduce sentence, stating:
“In United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972) the Supreme Court observed: 1 * * * that a sentence imposed by a federal district judge, if within statutory limits, is generally not subject to review.’ We fail to find any abuse of discretion on the part of the trial court in denying the motion to modify or set aside the sentence.”
In United States v. McCord, 466 F.2d 17 (2d Cir. 1972), the court affirmed the denial of a Rule 35 motion to reduce a sentence imposed on a selective service violation. In doing so, the court cites and relies upon Tucker. The court recognizes that many judges have pronounced sentences in Jehovah Witness type draft cases of the type advocated by the majority opinion and holds that such evidence does not require a remand for resentencing.
There is no statute nor rule which expressly confers jurisdiction on Courts of Appeal to review sentences within statutory limits imposed upon a lawful conviction. Legislation to confer such appellate jurisdiction has been frequently proposed but has not yet been enacted. See ABA project “Appellate Review of Sentences”, tentative draft 1967, pp. 86-90.
In Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d *1501405 (1958), the Court in affirming an order denying a petition to review sentence imposed within statutory limits states and holds:
“In effect, we are asked to enter the domain of penology, and more particularly that tantalizing aspect of it, the proper apportionment of punishment. Whatever views may be entertained regarding severity of punishment, whether one believes in its efficacy or its futility, see Radzinowicz, A History of English Criminal Law: The Movement for Reform, 1750-1833, passim, these are peculiarly questions of legislative policy. Equally so are the much mooted problems relating to the power of the judiciary to review sentences. First the English and then the Scottish Courts of Criminal Appeal were given power to revise sentences, the power to increase as well as the power to reduce them. See 7 Edw. VII, c. 23, § 4(3); 16 & 17 Geo. V, c. 15, § 2(4). This Court has no such power.” (Emphasis added.)
As set out in the majority opinion, we have in a number of cases purported to review a district court’s denial of a Rule 35 motion to reduce a sentence but have denied relief on the basis that there has been no abuse of discretion. Such holding is technically inconsistent with the established law that sentences imposed within the statutory limit are not reviewable. However, the result is the same.
8A Moore’s Federal Practice 2d Ed. § 35.02(4) states:
“Since the motion for reduction of sentence is a plea for leniency, decision on the motion is as close to being a matter of pure discretion as any other under the Rules, with the exception of the sentence itself. It might be argued that such a determination should therefore not be reviewable by way of appeal. Apparently, no court has gone this far, although reversal of an order denying reduction is extremely rare.”
If we assume for the purposes of this case without so deciding that the abuse of discretion standard applies, we are satisfied that the defendant has failed to establish that the court abused its discretion in imposing the five-year sentence. This is not a case where the court acted on any relevant misinformation in imposing the sentence. The record reflects that the court was fully informed on all factors relevant to appropriate punishment. He had carefully considered the probation report, he knew defendant had sought a ministerial classification which was rejected by the Draft Board, and that the defendant had never applied for a conscientious objector classification. The court was aware of the reasons assigned by the defendant for not applying for the conscientious objector classification and stated that he recognized that the defendant was a fine young man.
A wide discretion is vested in the trial court with respect to imposition of sentence within statutory limits. A heavy burden rests on a party asserting abuse of discretion. A reviewing court is not justified in substituting its discretion for that of the trial court who had the benefit of seeing and hearing the defendant. See 5A C.J.S. Appeal and Error § 1583; United States v. McCord, supra; McGee v. United States, 462 F.2d 243 (2d Cir. 1972); Burns v. United States, 287 U.S. 216, 222-223, 53 S.Ct. 154, 77 L.Ed. 266 (1932).
In Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942), the court in defining discretion states:
“Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could *151differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”
In our present case there is nothing in the record to indicate that the trial court acted upon any misinformation with respect to the defendant’s character and background. Judges vary greatly as to sentences imposed, not only in selective service eases but in all types of cases, particularly those involving nonviolent crimes such as income tax evasion, and embezzlement. Defendant’s crime is more than a technical one. His plea of guilty admits all essential elements of the offense charged. Defendant has no constitutional right to a conscientious objector classification or to be excused from military service obligations. The exemption of conscientious objectors from military service is a matter of legislative grace and does not rise to a constitutional command. United States v. Crocker, 308 F.Supp. 998 (D.Minn.), aff'd 435 F.2d 601 (8th Cir. 1971).
Probation for a convicted defendant is a matter of grace and not a matter of right. No defendant has an absolute right to probation. Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 77 L.Ed. 266; United States v. Alarik, 439 F.2d 1349,1351 (8th Cir. 1971).
Defendant has failed to establish his right to exemption from military service by failing to follow the reasonable procedures prescribed by the statutes and regulations for asserting exemption. Defendant by failing to report for military service as ordered has created unnecessary confusion in the administration of the draft law and has made it necessary for some other person to take his place and expose himself to the possible hazard of Vietnam conflict.
While imprisonment may not be necessary to rehabilitate the defendant, the deterrent effect upon others is always a proper item for consideration in imposing sentence. See Williams v. New York, 337 U.S. 241, 248-249 n. 13, 69 S.Ct. 1079, 93 L.Ed. 1337. It cannot fairly be said on the basis of the record in this case that the public interest does not require a fair enforcement of the selective service laws and that reasonable men could not differ on the propriety of the sentence imposed.
The issue of mechanical sentencing discussed by the majority was never presented in the trial court and hence such court had no opportunity to consider the issue. Issues not raised in the trial court cannot properly be considered on appeal. Smith v. American Guild of Variety Artists, 368 F.2d 511, 514 (8th Cir. 1966).
In any event, I believe that the majority has misconceived the trial court’s statement with respect to his policy. There is nothing in the court’s statement which explicitly describes the policy to which he refers. Inasmuch as sentence has been deferred, it would appear that the policy was to give the defendant an opportunity to reconsider reporting for induction before sentence was imposed. There is nothing in the record to indicate that the defendant has been denied due process in connection with his sentencing or Rule 35 proceedings. Defendant and his attorney were afforded a full opportunity to present anything they desired to support the claim for leniency and probation made prior to sentence. The present petition and the application for reconsideration do not reveal that the defendant had anything to present which had not previously been presented to the court in connection with his pre-sentence request for parole. Under such circumstances the trial court did not abuse its discretion in not affording a hearing.
The result reached by the majority is supported by the Sixth Circuit cases cited and relied upon. For reasons herein-above stated, I do not agree with the reasoning upon which such decisions are based. The majority opinion departs from the long-established rule in effect in this circuit and generally elsewhere-*152that sentences within the statutory limits are not subject to appellate review and in effect opens the gate to appellate review of all sentences. Such a drastic change in the law in my view requires appropriate Congressional action. Gore v. United States, supra.
I would affirm the order denying defendant’s,, Rule 35 motion.1
. In 2 Wright Federal Practice and Procedure § 533, p. 455, the following appears : “Reasonable men may well wonder whether the greater uniformity in sentences expected from appellate review will in fact materialize, and whether it will simply add a new burden to appellate courts that are already overworked.” Additional problems presented by appellate review of sentencing are ably set out in United States v. Wiley, 184 F.Supp. 679 (N.D.Ill.1960).