678 F.Supp. 1463 (S.D.Cal. 1988), Crim. 87-1279, United States v. Arnold

Docket Nº:Crim. 87-1279
Citation:678 F.Supp. 1463
Party Name:United States v. Arnold
Case Date:February 18, 1988
Court:United States District Courts, 9th Circuit, Southern District of California

Page 1463

678 F.Supp. 1463 (S.D.Cal. 1988)

UNITED STATES of America, Plaintiff,


Ira Russell ARNOLD, Johnny Mike Kulow, Defendants.

Crim. No. 87-1279-B.

United States District Court, S.D. California.

Feb. 18, 1988

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Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., Douglas Letter, Civ. Div., Dept. of Justice, Washington, D.C., for plaintiff.

John R. Steer, Gen. Counsel, U.S. Sentencing Com'n, Washington, D.C., amicus curiae.

Larry N. Ainbinder, Federal Defenders of San Diego, Inc., San Diego, Cal., for defendant Kulow.

Alan Morrison, Public Citizen Litigation Group, Washington, D.C., for defendants.


BREWSTER, District Judge.


Defendants move the court for an order declaring the sentencing guidelines ("Guidelines") promulgated by the United States Sentencing Commission ("Commission") pursuant to the Sentencing Reform Act of 1984 ("Act"), 28 U.S.C. §§ 991-98 (1987), invalid on the grounds that the Act violates the delegation doctrine and separation of powers. Defendants have pled not guilty to an indictment charging in five counts violations of 18 U.S.C. §§ 371, 1708 arising out of conduct which allegedly occurred after November 1, 1987. 1 The case is in pre-trial stage with a motion for discovery set for March 15, 1988. Detailed factual recitation of this case is not necessary since the motion does not depend on the alleged conduct of these defendants and will therefore be omitted here.

Preliminarily, the court is sensitive to the gravity of the task presented by this motion and approaches the issues with great deference to the dedication of hundreds of persons and thousands of hours, plus the expenditure of millions of dollars which have been committed to producing both the Act and the initial Guidelines. As the Supreme Court commented regarding its duty of statutory review:

Although research has shown and practice has established the futility of the charge that it was a usurpation when this Court undertook to declare an Act of Congress unconstitutional, I suppose that we all agree that to do so is the greatest and most delicate duty that this Court is called upon to perform.

Blodgett v. Holden, 275 U.S. 142, 147-48, 48 S.Ct. 105, 107, 72 L.Ed. 206 (1928).

Nevertheless, the parties are entitled to the court's response to the motion in accordance with the court's solemn duty.

When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty,--to lay the article of the Constitution which is involved beside the statute which is challenged and to decide whether the latter squares with the former.

United States v. Butler, 297 U.S. 1, 62, 56 S.Ct. 312, 318, 80 L.Ed. 477 (1936).

The court is also aware of the admonition that a statute must be construed, whenever possible, to save it from unconstitutionality. Driscoll v. Edison Light & P. Co., 307 U.S. 104, 114-15, 59 S.Ct. 715, 720-21, 83 L.Ed. 1134 (1939).

It is with these principles in mind that the court reviews the constitutionality of the Guidelines.


The court, having reviewed briefs by defendants, the Government, and the Amicus brief of the Commission, and having heard oral presentations by counsel for all the same, and otherwise having studied the matter, concludes for the reasons which will be stated in more detail below, as follows:

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1) The issues raised by the motion are "ripe" for determination now;

2) The Guidelines of the Commission to date are invalid because they are the product of a Commission whose placement in the Judicial Branch and whose composition, so far as it mandatorily includes article III judges as members, violate the constitutional doctrine of separation of powers.


The Sentencing Reform Act of 1984 effects a major revision of sentencing in the federal courts, both procedurally and substantively. By this legislation, Congress created the Commission in the Judicial Branch of the United States to establish sentencing policy and practices for the federal criminal justice system within extensive criteria as outlined by Congress in this and other statutes. 2

The members of the Commission, consisting initially of seven voting and two ex officio non-voting members, were appointed by the President by and with the advice and consent of the Senate for six-year terms, renewable once. 28 U.S.C. § 991(a). They are removable by the President only for "neglect of duty or malfeasance in office or for other good cause shown." Id. At least three voting members must be article III judges, selected from a list of six judges recommended to the President by the Judicial Conference of the United States. Id. At the present time, three circuit judges serve on the Commission. 3

Within the specified philosophical parameters set by Congress, the Commissioners' duties include the promulgation and distribution to all courts of the United States and to the United States Probation System of the following:

1) sentencing guidelines for use of sentencing courts for most federal crimes;

2) general policy statements explaining application of the guidelines or any other aspect of sentencing or sentencing implementation in furtherance of Congressional purposes established by statutes, including, but not limited to the following: 4

a) sanctions;

b) conditions of probation and supervised release;

c) sentence modifications;

d) imposition of fines;

e) plea agreement authorities and implementations;

f) temporary release provisions and pre-release custody;

g) guidelines for revocation of probation;

3) reports of compliance by sentencing courts obtained by monitoring procedures;

4) consideration of petitions of defendants requesting modification of guidelines utilized in sentencing that defendant;

5) research and development for future amendments and improvements to the sentencing mission; and

6) periodic training programs for all involved persons.

The Commission acts by an affirmative vote of at least four voting members to establish all general policies, rules and regulations for Commission functions. § 994(a). The Commissioners serve full time for the first six years after the Guidelines go into effect; thereafter, the voting members, other than the Chairman, serve part time as necessary to perform the duties and powers outlined in the Act. § 922(c).


A. Ripeness

Although no party raises the issue, a threshold question for the court's determination is whether the motion is ripe for decision. In an oft-quoted passage in the declaratory judgment context, the Supreme Court has admonished that "[t]he disagreement must not be nebulous or contingent

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but must have taken on fixed and final shape so that a court can see what legal issues it is deciding, what effect its decision will have on the adversaries, and some useful purpose to be achieved in deciding them." Public Service Commission v. Wycoff Co., 344 U.S. 237, 244, 73 S.Ct. 236, 240, 97 L.Ed. 291 (1952).

Although the concept of ripeness lacks precise formulation and consistent application, the usual analysis balances two broad factors--the "fitness of the issues for judicial decision" against "the hardship to the parties of withholding court consideration." Abott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).

A central component of the fitness for review factor is whether the motion involves uncertain or contingent future events that may never occur. Thomas v. Union Carbide Agricultural Products, 473 U.S. 568, 580, 105 S.Ct. 3325, 3332-33, 87 L.Ed.2d 409 (1985). If such be the case, the court could find itself engaged in unnecessary lawmaking. See 13A C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3532.1, at 114-15 (1984). The Guidelines may never be invoked in this case. The defendants may decide not to enter guilty pleas and could be acquitted at trial. The court's inquiry, however, should look beyond the two defendants presently before the court. Nationally, defendants are entering guilty pleas for conduct occurring after November 1, 1987. The Guidelines, therefore, are mathematically certain to be immediately applicable in a finite number of cases, if not in this case.

Another consideration in weighing the fitness for review focuses on the nature of the issues before the court. Issues which are purely legal, requiring no further factual development to clarify the dispute, support fitness for judicial action. Thomas, 473 U.S. at 581, 105 S.Ct. at 3333; Piledrivers' Local 2375 v. Smith, 695 F.2d 390 (9th Cir.1982); Arizona v. Atchison, T. & S.F.R.R., 656 F.2d 398, 402-03 (9th Cir.1981). The issues now before this court are purely legal and need no further factual development. This first part of the so-called "balancing test" supports the conclusion that this case is fit for review.

As for the balancing factor to be weighed, i.e., the hardship on the parties of withholding review, the needs of the parties for a determination are substantial, if not massive. Hundreds of cases are being filed nationally each week, pleas are being analyzed and negotiated, extensive effort is being expended by the Commission, and a myriad of arrangements are being made for putting into place institutions to monitor, oversee, review, and administrate the Act and its execution. The longer the constitutionality of the Guidelines and the Commission...

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