decided: February 20, 1945.
Before PARKER, MARIS, and GOODRICH, Circuit Judges.
The defendant has appealed from the order of the District Court refusing to suspend the execution of the sentence previously imposed upon him and upheld by the Supreme Court, 322 U.S. 694, 64 S. Ct. 1248, and to place him on probation. The suspension of sentence in a criminal case and the placing of the defendant on probation is a privilege which the District Court may in the exercise of its discretion accord to a defendant but which cannot be demanded as a right. Burns v. United States. 287 U.S. 216, 220, 53 S. Ct. 154, 77 L. Ed. 266. The action of the court in refusing to grant the privilege is accordingly not reviewable on appeal except possibly for arbitrary or capricious action on the part of the District Judge which amounts to an abuse of discretion.The record in this case discloses that the District Judge considered in open court all the reasons advanced by the defendant in support of his application for suspension and probation but reached the conclusion under all the circumstances that it was his duty to let the sentence stand. His action was clearly neither arbitrary nor capricious and we may, therefore, not review it.
The order of the District Court is affirmed. Our mandate, however, will not issue for 30 days in order that the defendant may have an opportunity to make an application for executive clemency.
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