389 F2d 279 McClure v. United States

389 F.2d 279

James Daniel McCLURE, Appellant,
UNITED STATES of America, Appellee.

Nos. 21644-A, 21644-B, and 21674.

United States Court of Appeals Ninth Circuit.

Jan. 22, 1968.

Hardy Myers, Jr., (argued), Portland, Or., for appellant.

Mallory C. Walker (argued), Asst. U.S. Atty., Sidney I. Lezak, U.S. Atty., Charles Habernigg, Asst. U.S. Atty., Portland, Or., for appellee.

Before HAMLEY, BROWNING, and CARTER, Circuit Judges.


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Appellant complains that the district court did not comply with the mandate of Rule 11, Fed.R.Crim.P., when the court accepted appellant's plea of guilty to a charge of unauthorized wearing of the uniform of a second lieutenant of the United States Air Force. 18 U.S.C. 702 (1964).


It appears from the record that the court failed to advise appellant that he could be sentenced as a youth offender under 18 U.S.C. 5010(b) (1964). The record also shows, however, that the court corrected this omission at a subsequent hearing, and after doing so informed appellant that he was free to withdraw his guilty plea and stand trial if he wished. Appellant responded that he wished to 'remain with the guilty plea.' He was then sentenced.


Clearly, the error of which appellant complains was harmless. Since the court complied with rule 11 before appellant finally committed himself to his plea, appellant was not faced with the risk that the question of his understanding might be erroneously resolved against him at a subsequent hearing in collateral proceedings, as was the case in Heiden v. United States, 353 F.2d 53, 55 (9th Cir. 1965). This disposes of appellant's appeal from his conviction and from the denial of his motion under 28 U.S.C. 2255.


In a separate appeal appellant challenges the district court's judgment revoking probation on a prior conviction. Appellant contends that the hearing afforded him was inadequate. We cannot agree. The violation of probation charge by the petition was simply that appellant had failed to submit monthly reports. Appellant admitted the charge. There were no issues, factual or legal, requiring an extensive hearing. Appellant was represented by counsel. Neither he nor his attorney requested or was denied an opportunity to make any presentation either might wish. There was no suggestion has been none in this court, that there has been non in this court, that there were relevant matters of fact or law which might have been submitted to the court but were not.