857 F.2d 1245 (9th Cir. 1988), 88-5848, Gubiensio-Ortiz v. Kanahele

Docket Nº:88-5848, 88-5109.
Citation:857 F.2d 1245
Party Name:Jose GUBIENSIO-ORTIZ, Petitioner-Appellant, v. Al KANAHELE, Warden, Metropolitan Correctional Center, San Diego, California, Respondent-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Raul CHAVEZ-SANCHEZ, Defendant-Appellee.
Case Date:August 23, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1245

857 F.2d 1245 (9th Cir. 1988)

Jose GUBIENSIO-ORTIZ, Petitioner-Appellant,


Al KANAHELE, Warden, Metropolitan Correctional Center, San

Diego, California, Respondent-Appellee.

UNITED STATES of America, Plaintiff-Appellant,


Raul CHAVEZ-SANCHEZ, Defendant-Appellee.

Nos. 88-5848, 88-5109.

United States Court of Appeals, Ninth Circuit

August 23, 1988

Argued and Submitted May 13, 1988.

As Amended Sept. 15, 1988.

Page 1246

Appeal from the United States District Court for the Southern District of California.

Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., and Judy Clarke, Federal Defenders of San Diego, Inc., San Diego, Cal., for the petitioner-appellant in No. 88-5848 and the defendant-appellee in No. 88-5109.

Douglas Letter and Gregory C. Sisk, U.S. Dept. of Justice, Washington, D.C., Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., for the respondent-appellee in No. 88-5848 and the plaintiff-appellant in No. 88-5109.

Paul M. Bator, Mayer, Brown & Platt, Chicago, Ill., and John R. Steer, Gen. Counsel, U.S. Sentencing Com'n, Washington, D.C., for the U.S. Sentencing Com'n as amicus curiae.

Before WIGGINS, BRUNETTI and KOZINSKI, Circuit Judges.

KOZINSKI, Circuit Judge.

We consider the constitutionality of the Sentencing Reform Act of 1984 (SRA), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (codified as amended at 18 U.S.C. Secs. 3551-3742 and 28 U.S.C. Secs. 991-998).


A. In 1984, Congress consummated a decade-long effort to revolutionize federal sentencing law by creating the United States Sentencing Commission as "an independent commission in the judicial branch of the United States." 28 U.S.C. Sec. 991(a) (Supp. IV 1986). Congress charged the Commission with eliminating unwarranted sentencing disparities among "defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences." 28 U.S.C.

Page 1247

Sec. 991(b)(1)(B) (Supp. IV 1986). In an effort to establish this more determinate system of sentencing, the Act introduces three major changes from prior law: (1) It authorizes the Commission to promulgate "guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal case," along with policy statements to facilitate implementation of the guidelines, 28 U.S.C. Sec. 994(a) (Supp. IV 1986); (2) it prospectively abolishes parole, see SRA Sec. 235(b), 98 Stat. at 2032-33; and (3) it substantially curtails the availability to prisoners of credits toward their sentence for good time served, 18 U.S.C. Sec. 3624(b) (Supp. IV 1986).

The Commission was given considerable guidance as to the promulgation of the guidelines. Congress specified, for example, that the guidelines be in the form of a matrix with one axis describing the characteristics of the offense and the other the offender's character and criminal history. The Commission was directed to establish a maximum "sentencing range" of six months or 25 percent of the minimum sentence, whichever is greater, for "each category of offense involving each category of defendant." 28 U.S.C. Sec. 994(a)(1), (b) (Supp. IV 1986). To guide the Commission in filling out the matrix, Congress listed seven offense characteristics and eleven offender characteristics, but left it to the Commission to determine their relevance, if any. See 28 U.S.C. Sec. 994(c)-(e) (Supp. IV 1986). Congress also directed the Commission to construct the sentencing matrix in light of four overarching considerations: deterrence, public protection, rehabilitation and just punishment. 28 U.S.C. Sec. 991(b)(1)(A), (2) (Supp. IV 1986); 18 U.S.C. Sec. 3553(a)(2) (Supp. IV 1986). Finally, Congress provided that the race, sex, national origin, creed and socioeconomic status of the offender should not be part of the sentencing matrix. 28 U.S.C. Sec. 994(d) (Supp. IV 1986).

The guidelines are binding, not merely hortatory. In imposing sentence, judges may deviate from the matrix only if there are aggravating or mitigating factors that the Commission did not adequately consider in formulating the guidelines and if they state their reasons on the record. 18 U.S.C. Sec. 3553(b), (c)(2) (Supp. IV 1986). Both the defendant and the government may appeal sentencing decisions on the ground that they are inconsistent with the guidelines. 18 U.S.C. Sec. 3742 (Supp. IV 1986). The Commission is empowered to monitor the operation of the guidelines and supplement or amend them, and intends to do so extensively. 28 U.S.C. Secs. 994(o)-(r), 995(a) (Supp. IV 1986); see U.S. Sentencing Commission, Preliminary Observations of the Commission on Commissioner Robinson's Dissent 4, 6-7 (May 1, 1987).

Under the Act, the President appoints the Commission's seven members, including its chairman, subject to Senate confirmation. 28 U.S.C. Sec. 991(a). The Act provides that three of the members must be federal judges whom the President may select after considering a list of six submitted by the Judicial Conference of the United States, and who may serve without resigning from the bench. Id.; 28 U.S.C. Sec. 992(c) (Supp. IV 1986). In addition, the Attorney General may appoint a representative to serve as an ex officio, nonvoting member of the Commission; during the Commission's first term, the Chairman of the United States Parole Commission or his designee serves as a second ex officio, nonvoting member. 28 U.S.C. Sec. 991(a); SRA Sec. 235(b)(5), 98 Stat. at 2033. Commissioners, whose initial terms vary, may be reappointed by the President to serve two full six-year terms. 28 U.S.C. Sec. 992(a)-(b) (Supp. IV 1986). The President may remove Commission members "for neglect of duty or malfeasance in office or for other good cause." 28 U.S.C. 991(a).

The President proceeded to appoint the seven Commissioners, including three sitting federal judges. To chair the Commission he chose Judge William W. Wilkins, then of the District Court for the District of South Carolina and later elevated to the Court of Appeals for the Fourth Circuit. Joining Judge Wilkins were Judge Stephen Breyer of the Court of Appeals for the First Circuit and Senior Judge George MacKinnon of the Court of Appeals for the District of Columbia Circuit. By a vote of

Page 1248

six to one, with all three judges in the majority, the Commission adopted guidelines grouping offenses into 43 categories, and defendants into six categories. As provided by the Act, the guidelines were submitted to Congress. SRA Sec. 235(a)(1)(B)(ii)(I), 98 Stat. at 2032. Congress having taken no action for six months, the guidelines became effective as to crimes committed on or after November 1, 1987. SRA Sec. 235(a)(1)(B)(ii)(III), 98 Stat. at 2032.

B. Jose Gubiensio-Ortiz was charged with aiding and abetting the illegal entry of an alien. 18 U.S.C. Sec. 2 (1982); 8 U.S.C. Sec. 1325 (Supp. IV 1986). The crime was committed on January 26, 1988. Gubiensio pleaded guilty two days later and was sentenced to six months in prison. On March 18, 1988, Gubiensio filed a petition for habeas corpus challenging the Bureau of Prisons' refusal to award him good time credits under 18 U.S.C. Secs. 4161-4162 (1982), which sections were repealed when the guidelines went into effect. Gubiensio argued that he was entitled to good time credits because the Act is unconstitutional and therefore did not effectively repeal the prior law. The petition was heard by District Judge Brewster, who had previously ruled that the guidelines were unconstitutional. See United States v. Arnold, 678 F.Supp. 1463, 1466-72 (S.D.Cal.1988). In Gubiensio's case, Judge Brewster ruled that while the Act was unconstitutional insofar as it authorized the guidelines, the provisions pertaining to good time credits were severable. He therefore denied the petition.

Raul Chavez-Sanchez was indicted on five counts of transportation of illegal aliens, 8 U.S.C. Sec. 1324(a)(1)(B) (Supp. IV 1986), illegal entry into the United States, 8 U.S.C. Sec. 1325 (Supp. IV 1986), and making false statements to a federal officer, 18 U.S.C. Sec. 1001 (1982). Because the crimes were committed on or about November 19, 1987, Chavez was similarly subject to the Act. Chavez pleaded guilty to illegal entry before District Judge Irving, who subsequently declared the Act unconstitutional, incorporating Judge Brewster's opinion in Arnold. Chavez was sentenced to 18 months in prison and a $50 fine in accordance with pre-SRA law. While the sentence exceeded the maximum permitted under the applicable guideline, the court did not impose a period of supervised release following imprisonment as the guideline would have required.

Gubiensio appeals in No. 88-5848 the denial of his petition for habeas corpus on the basis that the good time credits provision of the SRA is not severable. The United States appeals in No. 88-5109 on the ground that Chavez's sentence was imposed "in violation of law" or "as a result of an incorrect application of the sentencing guidelines." 18 U.S.C. Sec. 3742(b)(1)-(2) (Supp. IV 1986). We expedited the appeals in both cases and consolidated them for decision.

Contentions of the Parties and Amicus Curiae

Before us are not only the United States and the criminal defendants but also the United States Sentencing Commission as amicus curiae. Each of the parties approaches the problem from a somewhat different perspective and together they have done a remarkably competent and thorough job of briefing all aspects of this difficult case.

Gubiensio and Chavez make a series of arguments in support of their claim that the Act is unconstitutional. Most fundamentally, they contend that Congress may not delegate so broadly its power to fix the punishments for crimes against the...

To continue reading