United States v. Robert E. Lopez

Robert E. Lopez was convicted of willful refusal to submit to induction. After this court affirmed the conviction, on May 10, 1971, United States v. Lopez, 442 F.2d 1311 (9th Cir. 1971), Lopez moved the district court, pursuant to Fed.R.Crim.P. 35, to modify his sentence so that he might be permitted to submit to induction in order to make an in-service claim for conscientious-objector status. The district court denied the motion, and this appeal followed.

Appellant received his notice of induction on March 3, 1970. He then for the first time requested a Form 150, so that he could file for classification as a conscientious objector. The board denied appellant’s request. He refused to submit to induction, was convicted, and his conviction was affirmed by this court on the basis of Ehlert v. United States, 402 U.S. 99 , 91 S.Ct. 1319 , 28 L.Ed.2d 625 (1971).

In Ehlert , the Supreme Court held that local boards under a Selective Service Regulation ( 32 C.F.R. § 1625.2 (1971)), could refuse to consider a conscientious-objector claim made subsequent to the issuance of an induction notice. The Court based its holding in part on the Army’s assurance that conscientious-objector beliefs,…