Alton W. Wheeler, Plaintiff-appellant, v. United States of America, Defendant-appellee, 744 F.2d 292 (2d Cir. 1984)

Plaintiff Alton W. Wheeler, convicted in 1982 of willfully failing to file federal income tax returns, in violation of 26 U.S.C. § 7203 (1976), appeals from a judgment of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, denying his application pursuant to Fed. R. Crim. P. 35 for a vacation of his sentence on the ground that 26 U.S.C. § 7203 is unconstitutional and therefore his conviction was invalid. We have considered Wheeler's arguments and find in them no merit. Congress unquestionably has the authority, under its general power to levy taxes, to require the filing of tax returns reporting taxable income and to make failure to comply with that requirement a criminal offense. We agree with our Sister Circuits, which have ruled unanimously that Sec. 7203 is constitutional. See, e.g., United States v. Thiel, 619 F.2d 778, 782 (8th Cir.), cert. denied, 449 U.S. 856, 101 S. Ct. 152, 66 L. Ed. 2d 70 (1980); United States v. Francisco, 614 F.2d 617, 619 (8th Cir.), cert. denied, 446 U.S. 922, 100 S. Ct. 1861, 64 L. Ed. 2d 278 (1980); United States v. Millican, 600 F.2d 273, 278 (5th Cir. 1979), cert. denied, 445 U.S. 915, 100 S. Ct. 1274, 63 L. Ed. 2d 598 (1980); United States v. Eagan, 587 F.2d 338, 339 (6th Cir. 1978); United States v. Ming, 466 F.2d 1000, 1004 (7th Cir.), cert. denied, 409 U.S. 915, 93 S. Ct. 235, 34 L. Ed. 2d 176 (1972); cf. United States v. Acker, 415 F.2d 328, 329 (6th Cir. 1969), cert. denied, 396 U.S. 1003, 90 S. Ct. 553, 24 L. Ed. 2d 495 (1970).

The judgment denying the motion to vacate sentence is affirmed.