United States v. Michael Forrest Preston

445 F.2d 808 UNITED STATES of America, Plaintiff-Appellee, v. Michael Forrest PRESTON, Defendant-Appellant. No. 26499. United States Court of Appeals, Ninth Circuit. June 25, 1971. Rehearing Denied August 10, 1971. Martha Goldin (argued) of Saltzman & Goldin, Hollywood, Cal., for appellant. Tom E. Kotoske, Asst. U. S. Atty. (argued), David R. Nissen, Chief, Criminal Division, Robert L. Meyer, U. S. Atty., Los Angeles, Cal., for appellee. Before CHAMBERS, CARTER and WRIGHT, Circuit Judges. WRIGHT, Circuit Judge: 1 Michael Forrest Preston appeals his conviction and three-year sentence for refusal to submit to induction in violation of 50 U.S.C. App. § 462. We affirm the conviction but remand to the trial court for resentencing. 2 While in college, Preston was classified II-S, his final classification as a student expiring on September 9, 1968. Thereafter he married and assumed responsibility for his wife and her two sons by a previous marriage. Because of his newly acquired family, Preston sought to change his I-A classification to III-A. He presented this information to his local board but was denied the III-A classification. An appeal resulted in unanimous affirmance…

Michael Forrest Preston appeals his conviction and three-year sentence for refusal to submit to induction in violation of 50 U.S.C. App. § 462. We affirm the conviction but remand to the trial court for resentencing.

While in college, Preston was classified II-S, his final classification as a student expiring on September 9, 1968. Thereafter he married and assumed responsibility for his wife and her two sons by a previous marriage. Because of his newly acquired family, Preston sought to change his I-A classification to III-A. He presented this information to his local board but was denied the III-A classification. An appeal resulted in unanimous affirmance without comment.

Thereafter Preston was ordered to report for induction. After numerous transfers and delays he finally reported and refused to submit to induction. This prosecution followed.

On appeal, Preston raises two questions which require our attention. 1 His first contention is that the local board erred when it refused to grant him the III-A (hardship) classification. 'His second point relates to the circumstances *809 surrounding his three-year sentence without probation as suggested by counsel at the time of…

concurring and dissenting.

I concur in the portion of the opinion affirming the conviction. I dissent from the remand for resentencing.

There were two bases for the court’s refusal to grant probation: (1) That there was no chance for rehabilitation because the defendant would not change his mind and seek induction into military service. The Selective Service regulations provide that even after sentence and the beginning of the service of a term for draft evasion, the prisoner may apply for parole and induction into military service. The Attorney General may grant the parole and the individual may be inducted. §§ 1643.1-1643.13.

(2) That the court could not compel him to do civilian work as a condition of probation. They were alternate reasons for the court’s refusal to grant probation.

The court clearly showed that it exercised its discretion as to the first ground, and even if the court was in error as to the second ground and did not exercise its discretion, no error occurred since the grounds were alternative.

Accordingly, I would not remand for resentencing but affirm the judgment.