United States v. James David Ross , 503 F.2d 940 ( 1974 )

LYNNE, District Judge

(concurring).

I concur in the result. However, I would not pretermit reconsideration by the district court of its power to revoke Ross’s probation for an offense committed by him prior to the commencement of his probationary sentence.

Counsel for Ross should be unfettered by Part II of the court’s opinion to contend that a close reading of 18 U.S.C. §§ 3651, 3653 (1970), a statute which I would construe strictly, seems to require that probation under the split sentencing provisions commence after the period of incarceration. Moreover, the cases cited in Part II rely on the “right-privilege” distinction which has been firmly discredited, particularly in Footnote 4 of Gagnon v. Searpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). The district court should be left free to determine whether the reasoning in Longknife and Rundle will withstand current due process scrutiny.