UNITED STATES of America, Plaintiff-Appellee, v. Michael Forrest PRESTON, Defendant-Appellant, 445 F.2d 808

WRIGHT, Circuit Judge: 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.

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 surrounding his three-year sentence without probation as suggested by counsel at the time of sentencing. I. THE HARDSHIP CLAIM. The heart of the controversy here stems from the fact that there are essentially two types of III-A deferments. The first, defined in 32 C.F.R. § 1622.30(a), is the “fatherhood” deferment available to married registrants with children under certain defined circumstances.

Though Preston was mai’ried and had two stepsons, it is conceded that he did not qualify for a fatherhood deferment because he had previously been classified II-S during his college years. The regulations specifically provide that “a registrant who is classified in Class II-S after the enactment of the Military Selective Service Act of 1967 shall not be eligible” for a fatherhood deferment. 32 C.F.R. § 1622.30(a). The second type of III-A classification is available to a registrant who can show that his “induction would result in extreme hardship” to his family. 32 C. F.R. § 1622.30(b).

Eligibility for this classification is not affected by previous II-S classifications. Preston contends that his showing before the local board constituted a prima facie case of entitlement to this classification and that the failure of the local board to grant it was error.

Without detailing his argument at length or commenting unnecessarily on the factual circumstances of his showing, it suffices to say that our examination of the record does not convince us that Preston made a prima facie showing that his induction would result in extreme hardship to his wife and sons which is the sine qua non of the classification. Absent such a showing, the alleged failure of the local board to state its reasons for denying the classification does not invalidate his order to report for induction. See generally United States v. Haughton, 413 F.2d 736 (9th Cir. 1969). II.

SENTENCING The district court record shows a perplexing statement indicating that the district judge thought he did not have the power or the discretion to give a suspended sentence and probation. It may well be that the judge simply misspoke for the moment, but we have to take the record as it is. Under the circumstances, the district court should vacate the sentence and re-sentence Preston. We do not indicate what the sentence should be. . Preston’s arguments relating to the local board’s handling of his late C.O. claim are completely foreclosed by Ehlert v.

United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).