Opinion
No. 1050, Docket 73-1193.
Argued June 28, 1973.
Decided September 10, 1973.
Michael A. Young, New York City (Robert Kasanof, Legal Aid Society, New York City, on brief), for appellant.
James E. Nesland, Asst. U.S. Atty. (Jay S. Horowitz, Asst. U.S. Atty., Paul J. Curran, U.S. Atty., on brief), for appellee.
Appeal from the United States District Court for the Southern District of New York.
Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
This is an appeal from an order of the United States District Court for the Southern District of New York denying a motion to vacate sentence made pursuant to 28 U.S.C. § 2255. The appellant contends that the district court in imposing sentence improperly denied his request for a civil commitment made under Title II of the Narcotic Addict Rehabilitation Act (NARA), 18 U.S.C. §§ 4251 et seq. The appellant claims that the district court denied him NARA treatment on the basis of the statutory exclusion from such treatment of defendants previously convicted of two or more felonies. Appellant urges that the statute so providing is unconstitutional. The record of the sentencing proceeding clearly indicates that the district court considered a range of factors such as the defendant's criminal record and marital history in reaching the decision to deny the defendant's request for NARA treatment and that the denial of the NARA sentencing alternative was based on the court's exercise of discretion.
We affirm on this ground and do not, therefore, reach the issue of the constitutionality of 18 U.S.C. § 4251(f)(4).
Affirmed.