UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DEAN NELSON BURNS, DEFENDANT-APPELLANT
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The court affirmed the conviction, finding no merit in the appellant's arguments regarding Miranda warnings, the constitutionality of the statute, or cruel and unusual punishment.
Appellant was convicted for wilfully failing to register under the Military Selective Service Act of 1967. He appealed, raising issues about the admis…
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PER CURIAM:
Appellant Burns was convicted for wilfully failing to register under the Military Selective Service Act of 1967, 50 U.S.C.App. § 462. He contends on appeal that admission of his oral statement to a government agent was improper under the Miranda guidelines, that the statute under which he has been prosecuted is unconstitutional, and that his three-year sentence constitutes cruel and unusual punishment.
The record amply supports the district’s court’s finding that appellant received the Miranda warnings and waived his rights before making his statement.
Appellant’s constitutional challenge to the draft statute rests upon arguments that have been rejected by prior decisions of this court. See, e. g. United States v. Gidmark, 440 F. 2d 773 (9th Cir. 1971); United States v. Leavy, 422 F. 2d 1155 (9th Cir. 1970).
A three-year sentence for violation of 50 U.S.C.App. § 462 does not constitute cruel and unusual punishment. Little v. United States, 409 F. 2d 1343, 1345 (10th Cir. 1969).
The district court has reduced the sentence from three to two years upon appellant’s motion. Since appellant had earlier filed a notice of appeal, the district court lacked jurisdiction to entertain the motion to reduce sentence. United States v. Ellenbogen, 390 F. 2d 537 (2d Cir. 1968). Burns will have 120 days after the mandate of this court issues to file a new motion in the district court to reduce sentence. Rule 35, Federal Rules of Criminal Procedure.
The conviction is affirmed.
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United States v. Quema Holloway, 740 F.2d 1373 (6th Cir. 1984)
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Fredrick G. Doyle v. United States, 721 F.2d 1195 (9th Cir. 1983)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- United States v. Ellenbogen, 390 F.2d 537 (2d Cir. 1968)
- Little v. United States, 409 F.2d 1343 (10th Cir. 1969)
- United States v. Leavy, 422 F.2d 1155 (9th Cir. 1970)
- United States v. Gidmark, 440 F.2d 773 (9th Cir. 1971)