U.S. v. Allen, 88-5739

• Decision Date: 04 May 1989
• Docket Number: No. 88-5739,88-5739
• Citation: 873 F.2d 963
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Scott ALLEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 963

873 F.2d 963

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Scott ALLEN, Defendant-Appellant.

No. 88-5739.

United States Court of Appeals Sixth Circuit.

Submitted March 23, 1989.

Decided May 4, 1989.

John W. Gill, Jr., U.S. Atty., Office of the U.S. Atty., Chattanooga, Tenn., James R. Dedrick, Asst. U.S. Atty., Office of the U.S. Atty., Knoxville, Tenn., for plaintiff-appellee.

James A.H. Bell, Knoxville, Tenn., for defendant-appellant.

Before MERRITT and BOGGS, Circuit Judges, and CONTIE, Senior Circuit judge.

CONTIE, Senior Circuit Judge.

Timothy Scott Allen appeals from the district court's judgment of conviction on one count of conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846. For the following reasons, we affirm the district court's judgment.

I.

On April 20, 1988, appellant Timothy Scott Allen was charged by information with one count of conspiracy to distribute and to possess with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846. The factual basis for the charge was filed under seal, and so the underlying facts will not be set forth below. The procedural history of the case will be summarized briefly.

Allen plead guilty to the information on the date on which it was filed. Thereafter, on June 16, 1988, Allen filed a motion to declare the Sentencing Reform Act of 1984, as amended, 18 U.S.C. Sec. 3551 et seq. and 28 U.S.C. Secs. 991-998, and the Sentencing Guidelines promulgated thereunder, see 28 U.S.C. Sec. 994, unconstitutional. The parties briefed this issue thoroughly, and it was ruled upon by the district court.

On June 29, 1988, the district court filed a memorandum and order denying Allen's motion, and holding that he would be sentenced under the Sentencing Reform Act. In so doing, the court held that the Act and the Sentencing Guidelines do not violate the constitutional principle of separation of powers; that the Guidelines do not violate due process; and that the Act does not constitute an unconstitutional delegation of legislative authority.

Following a hearing on that same day, the district court entered its judgment. The court sentenced Allen to forty-eight months' imprisonment, ¹ followed by three years of supervised release. The court also imposed a $2500.00 fine and a $50.00 special assessment.

Allen filed this timely appeal. Appellant argues that the district court erred in upholding the Sentencing Reform Act and the Sentencing Guidelines in the face of his three constitutional challenges. The Supreme Court recently has settled this issue as it relates to two of appellant's challenges.

II.

A.

In Mistretta v. United States, --- U.S. ----, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989), the Supreme Court squarely rejected the arguments that the Sentencing Reform Act constitutes an unconstitutional delegation of legislative authority and that it and the Sentencing Guidelines violate the constitutional principle of separation of powers. We are bound by that authority. Accordingly, we reject appellant's similar arguments.

B.

In support of his argument that the Sentencing Reform Act and the Sentencing Guidelines violate due process, Allen relies primarily on the Western District of Pennsylvania's opinion in United States v. Frank, 682 F.Supp. 815 (W.D.Pa.), rev'd, 864 F.2d 992 (3d Cir.1988). We agree with the courts of appeals which have considered this issue and refused to find a due process violation. Accordingly, we reject appellant's argument.

Although Mistretta did not address the argument that the Act and the Guidelines violate due process, the four circuit courts to consider this issue have held that no due process violation exists. See United States v. Brittman, 872 F.2d 827 (8th Cir.1989); United States v. White, 869 F.2d 822 (5th Cir.1989) (per curiam); United States v Vizcaino, 870 F.2d 52 (2d Cir.1989); Frank, 864 F.2d at 1008-10.

In Frank, the defendant argued that by circumscribing the sentencing court's discretion, the Sentencing Reform Act and the Sentencing Guidelines violate substantive due process, i.e., that there is a federal substantive liberty interest in an individualized determination of an appropriate sentence. Id. at 1008-09. The Third Circuit rejected that argument for two distinct reasons:

When dealing with imposition of the death sentence the Supreme Court has certainly cast doubt upon mandatory sentencing. That result apparently depends upon the proportionality requirement of the eighth amendment, a substantive liberty interest. Only once has the Court extended the proportionality requirement beyond the death sentence area. Following suit, courts of appeals have consistently rejected claims that mandatory prison terms set by Congress violate the due process clause by limiting the sentencing judge's discretion. We can conceive of sentencing guidelines imposing sentences short of the death sentence which are so disproportionate that they might be held to be cruel and unusual punishment. That substantive challenge is not advanced by Frank, however, and would in any event appear to be meritless in his case. The guideline sentences are, if anything, a move toward, rather than away from, proportionality in sentencing.

Aside from the proportionality argument, which may involve an eighth amendment substantive liberty interest, what is left is the contention that recognition of individualized treatment in sentencing is a right inherent in the human condition. The Supreme Court has recognized some substantive due process liberty interests as inherent in the human condition. The recognition of a substantive liberty interest in individualized treatment in sentencing would, however, be inconsistent with the generally accepted notion that both retribution, which focuses on the interests of the victim rather than the status of the defendant, and general deterrence, which focuses on the interests of society at large rather than the status of the defendant, are appropriate societal reasons for imposing sanctions.

Id. at 1009-10 (citations omitted).

Similar to Frank, in Vizcaino the defendant argued that by preventing the judge from making a discretionary assessment of the individual defendant at sentencing, the Act and the Guidelines violate substantive due process. In Vizcaino, however, the defendant also argued that by denying him the articulated exercise of discretion by the sentencing court and by vesting excessive sentencing authority in the prosecutorial branch of the government, the Act violates due process. The Second Circuit rejected these arguments. First, the court held that although the new sentencing scheme undoubtedly will restrict discretionary individualized sentencing, there is no constitutional right to judicial discretion in individualized sentencing. Second, the court held that the Guidelines provide "if nothing else" adequate procedural safeguards to satisfy the demands of the due process clause. Finally, the court held that assuming it would be fundamentally unfair for the executive branch to control sentencing, the Act does not vest the President with an unlawful degree of control over the promulgation of the Guidelines.

In White, the defendant, inter alia, reiterated the argument that by narrowly limiting the sentencing court's discretion through limiting the defendant's right to present mitigating factors and through eliminating probation under certain circumstances, the Guidelines violate due process. The Fifth Circuit rejected this argument, reasoning as follows: "The Constitution does not require individualized sentences. Congress has the power to completely divest the courts of their sentencing discretion and to establish an exact, mandatory sentence for all offenses. If Congress can remove the sentencing discretion of the district courts, it certainly may guide that discretion through the [G]uidelines." (Citations omitted.)

We agree with the circuits which have held that no due process violation exists. Initially, we emphasize that, contrary to appellant's argument, the Sentencing Reform Act and the Sentencing Guidelines do not prohibit the individualized determination of an appropriate sentence in all cases. A sentencing court may impose a sentence which deviates from the range prescribed by the Guidelines if it finds an aggravating or mitigating circumstance which the guidelines fail to take into account adequately. 18 U.S.C. Sec. 3553(b); 28 U.S.C. Sec. 991(b)(1)(B). See, e.g., United States v. Correa-Vargas, 860 F.2d 35 (2d Cir.1988). Indeed, the district court deviated from the range prescribed by the Guidelines in the instant case.

Nonetheless, the Act and Guidelines substantially circumscribe the discretion which sentencing courts formerly exercised. Frank, 864 F.2d at 1008. See, e.g., United States v. Uca, 867 F.2d 783 (3d Cir.1989).

One of the purposes of the...