U.S. v. Brady

• Decision Date: 30 January 1990
• Docket Number: 89-50128,Nos. 89-50079,s. 89-50079
• Citation: 895 F.2d 538
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Michael James BRADY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Andre Michelle LOWE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 538

895 F.2d 538

58 USLW 2483

UNITED STATES of America, Plaintiff-Appellee, v. Michael James BRADY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Andre Michelle LOWE, Defendant-Appellant.

Nos. 89-50079, 89-50128.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 7, 1989.

Decided Jan. 30, 1990.

Carlton F. Gunn and Alan T. Launspach, Deputy Federal Public Defenders, Los Angeles, Cal., for defendants-appellants.

Jeffrey C. Eglash, Asst. U.S. Atty., Los Angeles, Cal., and Andrew Levchuk, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Before BROWNING, BOOCHEVER and REINHARDT, Circuit Judges.

BOOCHEVER, Circuit Judge:

These two cases raise the issue of whether the Sentencing Guidelines, facially or as applied, violate the defendants' fifth amendment right to substantive and procedural due process by limiting the sentencing discretion of district courts and infringing defendants' rights to individualized sentences. We agree with the ten circuits which have previously decided this issue and find that the Guidelines do not violate due process on these grounds.

FACTS AND PROCEDURAL HISTORY

Brady

Michael James Brady (Brady) was indicted October 18, 1988, on three counts of robbery of a bank or savings and loan association in violation of 18 U.S.C. Sec. 2113(a) (1982). Brady pled guilty to the third count and on February 13, 1989, the district court reluctantly sentenced him under the Guidelines to 24 months in custody followed by four years of supervised release. The court refused to depart from the Guidelines based on Brady's family standing and the aberrational nature of his criminal behavior, believing that these were not appropriate grounds for departure.

Lowe

Andre Michelle Lowe (Lowe) was indicted July 29, 1988, on one count of assaulting a federal employee in violation of 18 U.S.C. Sec. 111 (1982). On September 21, 1988, following a bench trial, the district court found him guilty of the offense. On February 13, 1988, the court sentenced him under the Guidelines to 30 months in custody followed by one year of supervised release. Lowe claims that the court, when computing the sentence under the Guidelines, did not consider Lowe's psychological condition and his need for long term psychotherapy.

DISCUSSION

Whether application of the Guidelines violates fifth amendment guarantees of due process is a question of law and is reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Facial Due Process Claim

The defendants claim that the Guidelines are facially invalid because the "Guidelines are a mechanical application of sentencing procedures which severely restrict the district court's ability to assess the circumstances of a defendant's individual case in order to make a determination of the appropriate sentence." Citing the importance of individualized sentencing, they assert that the Guidelines' restrictions on judicial discretion violate their fifth amendment right to substantive and procedural due process.

The Supreme Court upheld the constitutionality of the Guidelines over challenges based on alleged violations of separation of powers and improper delegation of legislative authority in Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), but has not addressed whether the Guidelines violate due process. The other circuits that have addressed this issue have unanimously concluded that the Guidelines do not infringe a defendant's fifth amendment right to substantive or procedural due process by limiting the sentencing judge's discretion to individualize a defendant's sentence. United States v. Thomas, 884 F.2d 540, 542-44 (10th Cir.1989); United States v. Harris, 876 F.2d 1502, 1504-06 (11th Cir.), cert. denied, --- Relying on dictum in the plurality opinion in Lockett v. Ohio, 438 U.S. 586, 603-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (opinion of Burger, C.J.), many of these courts have determined that no recognized substantive due process right to judicial discretion in individualized sentencing exists in noncapital cases. See, e.g., Vizcaino, 870 F.2d at 55-56. They have bolstered this conclusion by citing cases upholding the constitutionality of mandatory minimum sentencing statutes. Id. at 55 (citing McMillan v. Pennsylvania, 477 U.S. 79, 92, 106 S.Ct. 2411, 2419, 91 L.Ed.2d 67 (1986)). Several courts also noted

U.S. ----, 110 S.Ct. 417, 107 L.Ed.2d 382 (1989); United States v. Bolding, 876 F.2d 21, 23 (4th Cir.1989); United States v. Pinto, 875 F.2d 143, 145-46 (7th Cir.1989); United States v. Allen, 873 F.2d 963, 966 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 17 (1st Cir.1989) (per curiam); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 184, 107 L.Ed.2d 140 (1989); United States v. Vizcaino, 870 F.2d 52, 53-56 (2d Cir.1989); United States v. White, 869 F.2d 822, 825 (5th Cir.) (per curiam), cert. denied, --- U.S. ----, 109 S.Ct. 3172, 104 L.Ed.2d 1033 (1989); United States v. Frank, 864 F.2d 992, 1009-10 (3d Cir.) (decided only on substantive due process grounds), cert. denied, --- U.S. ----, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989).

the Third Circuit's reliance on the general acceptance of the retributive and deterrent purposes of sentencing, see Frank, 864 F.2d at 1008-09, which, while it cannot, of course, impair established constitutional rights, is evidence that a sentencing scheme emphasizing these purposes is not so fundamentally unfair as to warrant due process condemnation.

Vizcaino, 870 F.2d at 55-56; see Thomas, 884 F.2d at 543; Allen, 873 F.2d at 965.

We agree with the result of these decisions but find it unnecessary to base our decision on such broad grounds. Rather, we believe that the Guidelines do not infringe a defendant's right to an individualized sentence, whether or not such a right is constitutionally mandated. The Guidelines limit a sentencing judge's discretion, but "[a] sentence under the guidelines continues to be highly 'individualized' under the historically accepted criteria" including "the defendant's criminal history, the degree of seriousness of the crime, as well as a more or less refined categorization of criminal offenses." Seluk, 873 F.2d at 17. Moreover, "if a trial judge deems a particular factor not to have been adequately taken into account in the guidelines, he is permitted to depart from them." Id. (citing 18 U.S.C. Sec. 3553(b) (1988)). By requiring the sentencing court to consider all relevant factors and to articulate reasons for departing from such consideration, the Guidelines potentially pose fewer due process concerns than the pre-Guidelines sentencing practice of allowing nearly unfettered judicial discretion.

The guidelines were conceived and developed to avoid what many had perceived as a principal unfairness of the criminal justice system: the imposition of dramatically disparate sentences by different judges for like crimes committed in like circumstances. The strong hope is that rather than offend due process, the guidelines--properly administered--will greatly advance the fairness of criminal sentencing.

Seluk, 873 F.2d at 17 (citations omitted).

A majority of an en banc panel of district court judges from the Central District of California disagreed in United States v. Ortega Lopez, 684 F.Supp. 1506, 1513-14 (C.D.Cal.1988) (en banc), a case the defendants cite as persuasive authority to support their position. While the court acknowledged that the Guidelines provide for consideration of individual factors, it found

the rigid, computerized nature of the guidelines--which assign positive or negative numerical values to various sentencing factors and "adjustments"--precludes the trial court from weighing the importance of aggravating and mitigating factors relating to both the offender and the offenses of conviction. This weighing responsibility of the trial judge rests at the core of due process. Further, the Guidelines offend the guaranties Id. at 1513 (citing United States v. Frank, 682 F.Supp. 815, 819 (W.D.Pa.1988), modified, 864 F.2d 992, 1009-10 (3rd Cir.), cert. denied, --- U.S. ----, 109 S.Ct. 2442, 104 L.Ed.2d 998 (1989)) (emphasis in original and citations omitted).

of due process by depriving the defendant of the opportunity to affect the court's weighing of all relevant factors at the time of sentencing.

We believe the en banc majority's focus on the role of the sentencing court is misplaced. As the dissent explained, "[w]e judges, who with remarkable uniformity believe that we can do a better job of fitting the sentence to the crime and the criminal than can any chart or grid, or numerical evaluation of factors, must refrain from the temptation to classify our own beliefs in this respect as constitutional dogma." Ortega Lopez, 684 F.Supp. at 1520 (Hupp, J., dissenting). Judicial, as opposed to legislative, weighing of sentencing factors does not "rest at the core of due process" in this context. Rather, consideration of those factors lies at the heart of the right to individualized sentencing.

That was the thrust of this court's decision in United States v. Barker, 771 F.2d 1362 (9th Cir.1985), which defendants also cite in support of their position, and on which the Ortega Lopez court heavily relied. Barker stressed the importance of individualized sentencing and that "a criminal sentence must reflect an individualized assessment of a particular defendant's culpability rather than a mechanistic application of a given sentence to a given category of crime." Id. at 1365. But the court's focus in Barker was on the impropriety of imposing a criminal sentence based entirely on the crime, without regard to the individual convicted of that crime.

Our concern is less the appropriateness of a given criminal sentence than the propriety of the process through...