US v. Belgard

• Decision Date: 25 July 1988
• Docket Number: 87-295-MA.,Crim. No. 88-5-PA
• Parties: UNITED STATES of America, Plaintiff, v. David K. BELGARD, Sr. and Bradley Scott Summers, Defendants.
• Court: U.S. District Court — District of Oregon

694 F. Supp. 1488

UNITED STATES of America, Plaintiff, v. David K. BELGARD, Sr. and Bradley Scott Summers, Defendants.

Crim. Nos. 88-5-PA, 87-295-MA.

United States District Court, D. Oregon.

June 30, 1988.

As Amended July 25, 1988.

COPYRIGHT MATERIAL OMITTED

Charles H. Turner, U.S. Atty., Baron C. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff.

Priscilla L. Seaborg, Asst. Federal Public Defender, Portland, Or., for defendant Summers.

Steven T. Wax, Federal Public Defender, Kenneth Lerner, Asst. Federal Public Defender, Portland, Or., for defendant Belgard.

Shaun S. McCrea, Eugene, Or., Patrick M. Birmingham, Portland, Or., for various other defendants.

David Anderson, Washington, D.C., for amicus U.S. Sentencing Com'n.

OPINION AND ORDER

JAMES M. BURNS, District Judge.

INTRODUCTION

Belgard was convicted by a jury of assault resulting in serious bodily injury (namely rupture of the victim's small intestine) 18 U.S.C. §§ 113(f) and 1153. Chief Judge Owen M. Panner presided at the trial, and ordered a presentence report. Summers was indicted on two counts of unarmed bank robbery 18 U.S.C. § 2113(a); he pled guilty to one count in return for the government's promise to move for dismissal of the other at sentencing. Judge Marsh, who took the plea, also ordered a presentence report. Both presentence reports have been completed and sentencing for Belgard is set for July 5, and Summers for July 11, 1988. All of these criminal episodes took place after November 1, 1987, thus guideline sentencing ranges have been recommended to the judges who will impose sentence. Belgard's motion asserts a variety of constitutional claims seeking invalidation of the guideline sentencing scheme he faces. Summers joins those challenges, and adds one of his own, namely that Career Criminal Offender Guideline § 4B1.1 is also unconstitutional.

Chief Judge Panner, with the concurrence of the entire court, assigned to me the constitutional challenges¹ in the cases² arising from the Sentencing Guidelines. (Order filed May 26, 1988.) Oral argument was held June 15, 1988. For the reasons set forth, I deny all of defendant's motions.

The motions can, for convenience, be divided into two types. I will refer to the first group as the "Conventional" constitutional issues since they have been raised and ruled upon by many courts already. The second group includes all other constitutional issues; these, apparently being raised here for the first time, revolve around the role of the probation officer and various aspects of the presentence report as prepared pursuant to Rule 32 and the Guidelines. I will refer to these as "Probation Officer and Presentence Report" issues.

I. "CONVENTIONAL" CONSTITUTIONAL CHALLENGES

Three basic issues are involved here:

a) Unlawful delegation by Congress of its legislative power to the Sentencing Commission;

b) Violation of Separation of Powers resulting from the makeup of the Sentencing Commission, the powers and duties assigned to it and the guidelines which it promulgated and which have been in effect since November 1, 1987;

c) Denial of Due Process arising from the new scheme of things under Guideline Sentencing.

A. Unlawful Delegation

The unlawful delegation claim may be disposed of quickly. Only two cases (Schechter and Panama Refining)³ have involved a holding by the Supreme court that Congress has exceeded its powers to delegate its legislative authority. An accurate and thorough discussion may be found in Synar v. United States, 626 F.Supp. 1374 (D.D.C.), aff'd sub nom. Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986). Nearly all of the judges who have ruled—including, by my count, all but two of those who have struck down the guidelines on either separation of powers or due process grounds or both— have rejected this claim. For substantially the reasons set forth in the opinions by Judges Brewster and Enright, I also reject the unlawful delegation claim.

B. Separation of Powers

The separation of powers issue is much more difficult. From the beginning of these cases in San Diego in February, judges have been sharply divided.⁴ The two judges who blazed the constitutional trail for the rest of us were Judges Rudi Brewster and William Enright of the Southern District of California. The first opinion, United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988) was issued by Judge Brewster on February 18, 1988. He struck down the guidelines on separation of powers ground. Only 11 days later, Judge Enright in United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988) rejected the separation of powers claim and found the guidelines valid. (Neither opinion analyzed the due process claim). These two opinions—authored by able and thoughtful judges—may profitably be consulted by the reader. They show how close^4A this question is. For me, (as shown later in this opinion), the scales are tipped by the strong presumption of constitutionality which Supreme Court jurisprudence teaches we are to accord to acts of Congress. Simply stated, I am persuaded that the Enright view (and that of his colleagues in various districts who have reached the same result) is the better view.

When Chief Judge Panner and my colleagues gave me my marching orders in late May, inherent in those orders was a command to hear arguments promptly and to issue a decision quickly. No one would be the gainer if I were to take the time and space to engage in a lengthy analysis of separation of powers. The last word will be by the Supreme Court, now that it has granted certiorari in United States v. Mistretta, 682 F.Supp. 1033 (W.D.Mo.1988).⁵

C. Due Process

I now turn to the due process challenge. The earliest opinions—for example those of Judges Brewster and Enright—did not address the due process claim raised here. In later opinions, starting with Judge Ziegler in United States v. Frank, 682 F.Supp. 815 (W.D.Pa.1988), several courts which have struck down the guidelines have also found a violation of due process⁶ as well as of separation of powers.

The analysis offered by these opinions which found violations seems to identify violations of both substantive and procedural due process. With no disrespect, the distinction between the two types seems somewhat blurred to me. If I am correct that the analysis is blurred, it is no doubt due, in part, to the short time between oral argument and issuance of the opinions.

Two central themes are emphasized in these rulings which uphold the due process claim:

a) Defendants have a due process right to have individual consideration—by an individual judge—of all relevant circumstances of the offense, and of themselves as offenders. The product tested here—sentencing under the new law—provides not a guideline but a strait jacket; "A defendant is constitutionally entitled to an articulated exercise of discretion by the judge before whom he appears rather than to the mechanical application of formulae adopted by non-constitutional commissioners invisible to him and to the general public." U.S. v. Brodie, 686 F.Supp. 941, 952 (D.D.C.1988) quoting from U.S. v. Bolding, 683 F.Supp. 1003 at 1005 (D.Md.1988).

b) Defendants have a procedural due process right to challenge the information on which their sentence is based; employment of guidelines involves a forfeiture by them of this right.

Other courts have rejected the due process claim. Judge Mazzone in United States v. Alves, 688 F.Supp. 70 (D.Mass. 1988) appears to have been the first. Judge Diamond, in United States v. Kerr, 686 F.Supp. 1174 (W.D.Pa.1988) was next, and in the case from the Central District of California United States v. Ortega-Lopez, 684 F.Supp. 1506 (C.D.Ca.1988), Judge Hupp, writing in dissent for himself and 9 colleagues, found no due process violation. Here again, as in the opinions which have been divided as to the separation of powers issue, these are able and thoughtful opinions; they were issued—remarkably quickly— by able and thoughtful judges. Here again, aided by the strong presumption of constitutionality, I deny the due process claims asserted here, largely for the reasons stated in the opinions of Judges Mazzone, Diamond and Hupp.

It is true that due process plays a role in the sentence arrived at. A sentence based in part upon a prior conviction which occurred in the absence of counsel does not meet the demands of due process, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Nor may a judge impose a sentence based upon materially false or unreliable information, Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948); United States v. Weston, 448 F.2d 626 (9th Cir.1971), cert denied, 404 U.S. 1061, 92 S.Ct. 748, 30 L.Ed.2d 749 (1972). But I am not prepared to say that that is the case here with Belgard. He has every right to argue to Judge Panner, at sentencing, that information in the presentence report is of a forbidden nature or character. If Judge Panner so concludes, I am sure he will exclude it from his consideration in making a finding as to the proper guideline range, or as to whether he should depart from that range.

Further, I reject the due process arguments advanced here because they prove too much. These arguments urge adoption of a jurisprudence of labels.

I am also persuaded that those who constitutionalize "individualized sentencing" through invocation of due process have overlooked important sentencing history, especially as to flat sentencing. See U.S. v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978).

In early years of this nation's history, the only criminal sentences were "flat". The criminal, if sentenced to prison, received a single specified term, such as five years, or perhaps a fine, where the statute so provided. As shown in section IIA of this opinion, probation as a permissible sentencing tool was simply not available as recently as 1916, when the Supreme Court ruled in Ex Parte United States, 242...