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United States v. Baker

decided: November 7, 1973.

UNITED STATES OF AMERICA, APPELLEE,
v.
CHARLES BAKER, APPELLANT



Appeal from conviction after jury trial in the Southern District of New York, Inzer B. Wyatt, District Judge, of failure by appellant to keep his local board advised of his mailing address and his home address, in violation of Section 12(a) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) (1970), and 32 C.F.R. §§ 1641.3 and 1641.7 (1972).

Kaufman, Chief Judge, Lumbard and Timbers, Circuit Judges. Kaufman, Chief Judge, concurring. Lumbard, Circuit Judge (dissenting in part).

Author: Timbers

TIMBERS, Circuit Judge:

Appellant Charles Baker appeals from a judgment of conviction entered April 13, 1973 after a jury trial in the Southern District of New York, Inzer B. Wyatt, District Judge, finding him guilty on two counts of failure to keep his local board advised of his mailing address and of his home address, in violation of Section 12(a) of the Military Selective Service Act of 1967, 50 U.S.C. App. § 462(a) (1970), and 32 C.F.R. §§ 1641.3 and 1641.7 (1972). He was sentenced, under 18 U.S.C. § 4208(a)(2)(1970), to concurrent one year terms of imprisonment on each count. He has been enlarged on bail pending appeal. We affirm.

Of the various claims of error raised on appeal, the only one that warrants brief mention is appellant's claim that the district judge abused his discretion "by imposing sentence pursuant to a uniform sentencing policy which the judge followed in all selective service violation cases and by refusing to consider appellant's case individually."

In the first place, the statement in appellant's brief that "the judge stressed that he had not considered 'Mr. Baker's case individually' in reaching this sentencing determination" represents an unfortunate lifting of four words out of context. Judge Wyatt previously had stated, "Well, I am going to disregard the past record of the defendant . . . ." Then, immediately after the judge's sentence containing the four words quoted in appellant's brief -- "It is not Mr. Baker's case individually" -- Judge Wyatt said, "As I say, I haven't considered the prior convictions." Aside from reflecting the fact that the judge had considered appellant's pre-sentence report which of course was concerned with "Mr. Baker's case individually", Judge Wyatt's remarks, read in context, indicate only that he was not holding appellant's criminal record against him in imposing sentence in the instant case.

We turn next to the other part of appellant's claim -- that the sentence here imposed was "pursuant to a uniform sentencing policy which the judge followed in all selective service violation cases." Here again, read in context, Judge Wyatt's sentencing remarks may be briefly summarized as follows: he was troubled by the "disparities in sentence depending on what particular judge has the responsibility of sentencing"; he noted that some judges "uniformly [place] Selective Service law violators on probation", while in many parts of the country federal judges impose the maximum five year sentence; he indicated that he felt he could not discharge his responsibility with a clear conscience unless he imposed a prison term, which in most of his cases had been for a period of two years; in one case, however, he "gave probation or suspended sentence rather than prison"; in the instant case he stated that "I am going to change my practice and I am going to impose a one-year sentence. I am also going to make the defendant eligible for parole at such time as the Board of Parole may determine"; and he rejected the plea of appellant's counsel that the instant violations were merely "technical", thus meriting probation.

We reaffirm our disapproval of statements by a trial judge reflecting a fixed sentencing policy based on the category of crime rather than on the individualized record of the defendant. This applies to statements reflecting a policy of never incarcerating, as well as to a policy of always imprisoning.

Our careful examination of the record in the instant case, however, satisfies us that the sentence here imposed was not the product of a rigid sentencing policy in all selective service cases*fn1 and that it was not imposed without regard to appellant's case individually.

We have considered appellant's other claims of error and find them without merit.

Affirmed.

Disposition

Affirmed.

KAUFMAN, Chief Judge, ...


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