US v. Bogle

Citation689 F. Supp. 1121
Decision Date15 June 1988
Docket Number87-848-CR-KEHOE and 87-964-CR-HASTINGS.,88-8019-CR-DAVIS,87-858-CR-KEHOE,87-855-CR-ARONOVITZ,88-14001-CR-DAVIS,No. 87-856-CR-MARCUS,88-006-CR-RYSKAMP,87-856-CR-MARCUS
PartiesUNITED STATES of America, v. Beverly BOGLE. UNITED STATES of America, v. Marianne EUTSEY. UNITED STATES of America, v. Rafael S. PENA. UNITED STATES of America, v. Alan P. FOGEL. UNITED STATES of America, v. Marie D. PAUL. UNITED STATES of America, v. Steven M. ROBERTS, et al. UNITED STATES of America, v. Yolanda Rogers PEOPLES. UNITED STATES of America, v. Augusto GOMEZ.
CourtU.S. District Court — Southern District of Florida

COPYRIGHT MATERIAL OMITTED

Leon B. Kellner, U.S. Atty., Miami, Fla., John R. Bolton, Asst. Atty. Gen., William F. Weld, Asst. Atty. Gen., Douglas Letter, Thomas Millet, Karen Scrivseth and John Depue, Dept. of Justice, for U.S.

Stewart Abrams, Asst. Federal Public Defender, Miami, Fla., for defendant Bogle.

Kenneth Swartz, Asst. Federal Public Defender, Miami, Fla., for defendant Eutsey.

Stephen Bronis, Miami, Fla., for defendant Peña.

Michael Salnick, West Palm Beach, Fla., for defendant Fogel.

Philip Brutus, Asst. Federal Public Defender, Miami, Fla., for defendant Paul.

Luis Rojas, Hialeah, Fla., for defendants S. Roberts, J. Roberts, and Kelly.

Edward McHale, Miami, Fla., for defendant Peoples.

Melvyn Kessler, Miami, Fla., for defendant Gomez.

Benson B. Weintraub, Nat. Ass'n of Criminal Defense Lawyers, Miami, Fla., amicus curiae.

John R. Steer, General Counsel, U.S. Sentencing Com'n, Paul M. Bator, Andrew L. Frey, Kenneth S. Geller, Stephen G. Gilles, Washington, D.C., for U.S. Sentencing Com'n, amicus curiae.

Before KING, Chief Judge, ROETTGER, ARONOVITZ, HOEVELER, GONZALEZ, PAINE, KEHOE, SPELLMAN, DAVIS, HASTINGS, NESBITT, MARCUS, SCOTT, ZLOCH, and RYSKAMP, District Judges, and ATKINS, Senior District Judge.

MARCUS, District Judge.

At issue today is a constitutional challenge to the validity of the Sentencing Guidelines ("Guidelines") promulgated by the United States Sentencing Commission ("Commission") pursuant to the Sentencing Reform Act of 1984 as amended ("Act"). Pub.L. No. 98-473, Title II, 98 Stat. 1976, 2017 (1984), amended by Sentencing Act of 1987, Pub.L. No. 100-182, 101 Stat. 1266 (1987). We are called upon to decide the validity of an Act of Congress, one of the "gravest and most delicate" tasks that a Court will ever face. See Rostker v. Goldberg, 453 U.S. 57, 65, 101 S.Ct. 2646, 2652, 69 L.Ed.2d 478 (1981). Because of the paramount importance of the issue to this district in particular, as well as our desire to promote procedural uniformity and avoid disparate sentencing, we decided to hear these cases en banc.1See United States v. Anaya, 509 F.Supp. 289, 293-94 (S.D.Fla.1980) (en banc), aff'd sub nom. United States v. Zayas-Morales, 685 F.2d 1272 (11th Cir.1982). Eight cases were consolidated for the purposes of deciding this issue. Argument was taken before the full Court on April 21, 1988.

The Act was promulgated as part of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, and reflects a substantial effort to remedy unwarranted disparities in sentencing. In furtherance of the establishment of a uniform determinate federal sentencing system, the Act establishes a Commission to promulgate for all federal crimes binding rules, characterized as "Guidelines," and non-binding interpretive commentary and policy statements. The Guidelines essentially create, for each criminal offense, a narrow sentencing range that reflects the characteristics of the defendant, and the circumstances of the offense, and severely restricts the sentencing discretion now employed by federal judges. The Guidelines became effective on November 1, 1987, and apply to crimes committed after that date.

The Defendants and amicus curiae, the National Association of Criminal Defense Lawyers, challenge the constitutionality of the Guidelines for three basic reasons: first, they contend that the creation of the Commission and its placement in the judicial branch violates the separation of powers principle because the function of issuing general rules fixing punishment belongs to the legislative branch of government and may not be exercised by Article III judges, especially in concert with the executive branch of government; second, they argue that Congress cannot delegate this "core" legislative function at all, but that even if the legislative branch could accomplish such a delegation, this Act is so lacking in intelligible principles and rules as to be standardless and thereby unconstitutional; finally, they claim that the creation of binding Guidelines strips the sentencing judge of discretion in imposing sentence and therefore violates the Defendants' due process rights.

The Department of Justice has conceded that the placement of the Commission in the judicial branch of government impermissibly violates separation of powers principles, because it regards the issuance of sentencing guidelines, within the framework of the enabling legislation, to be exclusively an executive prerogative. The Department has argued, however, that the Commission's placement in the judicial branch may be remedied simply by recasting the Commission as executive in nature and housing it within that branch of government. Finally, the Commission, appearing as amicus curiae, has argued that "Congress may constitutionally create an independent body in the judicial branch that is authorized to perform the special sort of activity at issue here—rulemaking that is in aid of the judicial function of pronouncing sentence, and that is intended to rationalize and control the delegated sentencing discretion of federal judges." Memorandum of the United States Sentencing Commission as Amicus Curiae In Support of the Constitutionality of the Sentencing Guidelines at 2. hereinafter "Commission Brief". In the alternative, the Commission and the Department have asserted that even if some constitutional infirmity is founded on the placement of the Commission in the judicial branch, the Commission may be recognized constitutionally as an independent regulatory agency.

In spite of the great deference we accord the judgment of Congress, Rostker, 453 U.S. at 65, 107 S.Ct. at 2652, and the wisdom and skill with which the Commission undertook to accomplish its mission, we believe that the placement of the Commission in the judicial branch of the United States and the requirement that its function must be performed by at least three federal judges collide fundamentally with the doctrine of separation of powers, and hold that the Guidelines are unconstitutional on that ground. The unprecedented rulemaking authority vested in the Commission is sweeping in its breadth, and ongoing in nature; within the ambit of the enabling legislation, the Commission has been given the plenary authority to fix the level of punishment across the entire spectrum of the federal criminal code, and, over many years, to amend these general and prospective rules as the wisdom of time and experience and study may dictate. The task conferred upon this Commission—to ordain and properly apportion punishment —necessarily requires the assessment of disparate theories of penology, the selection of basic choices, and the allocation of scarce governmental resources. We think the Commission has been called upon to make the kinds of sensitive, political and general policy determinations that the judicial branch of government is least equipped to make. Simply put, we do not believe that judges may be called upon in this context to write the very laws they must apply. The problems inherent in calling upon judges to fix the general rules of punishment are exacerbated still further where, as here, the judges are asked to write these rules in concert with commissioners selected by the executive branch. This collaborative rule-making effort between the judicial and executive branches of government casts too long a shadow over the independence and impartiality of the entire federal judiciary. And we can find in the Act no overriding need to justify so unprecedented an expansion of the mass of power conferred upon the judicial branch. Because this Court has concluded, with the greatest reluctance, that the Guidelines violate the basic principles of separation of powers, we do not reach the delegation of power and due process issues.2

I.

The eight criminal cases before us are at various stages of the adjudicative process. While all of the defendants have raised the issue of the constitutionality of the Guidelines, we find that only those defendants who have been found guilty and would be sentenced under the Guidelines present a ripe issue. Six of the defendants have been adjudicated guilty:

1. United States v. Bogle, 87-856-CR-MARCUS
On November 18, 1987, Beverly Bogle was charged in a two-count indictment with the importation of at least five hundred grams of cocaine, and with possession with the intent to distribute at least five hundred grams of cocaine. 21 U.S. C. §§ 841(a)(1), 952(a). The offenses were committed at Miami International Airport, on November 11, 1987. Defendant Bogle pleaded guilty to the importation charge on January 11, 1988. The government agreed to dismiss the possession charge after sentencing.
2. United States v. Eutsey, 87-858-CR-KEHOE
On November 18, 1987, a federal grand jury charged Marianne Eutsey with knowingly and intentionally importing at least five hundred grams of cocaine, and with possessing with the intent to distribute at least five hundred grams of cocaine. 21 U.S.C. §§ 841(a)(1), 952(a). The offenses were committed on November 12, 1987 at Miami International Airport. Defendant Eutsey was found guilty of both counts in a trial before a jury on January 3, 1988.
3. United States v. Paul, 87-855-CR-ARONOVITZ
Marie D. Paul was charged by indictment on November 18, 1987, with the importation of a quantity of cocaine, and with possession with
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12 cases
  • US v. Weidner
    • United States
    • U.S. District Court — Northern District of Indiana
    • 11 août 1988
    ...supra, (cases listed alphabetically by defendant): United States v. Alafriz, 690 F.Supp. 1303 (S.D.N.Y. 1988); United States v. Bogle, 689 F.Supp. 1121 (S.D.Fla.1988) (en banc); United States v. Brodie, 686 F.Supp. 941 (D.D.C.1988); United States v. Dibiase, 687 F.Supp. 38 (D.Conn.1988); Un......
  • US v. Brown
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • 26 juillet 1988
    ...United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988) and other courts labelling it legislative, United States v. Bogle, 689 F.Supp. 1121 (S.D.Fla.1988) (en banc); United States v. Brittman, 687 F.Supp. 1329 (W.D.Ark.1988) (en banc); United States v. Estrada, 680 F.Supp. 1312 (D.Minn.198......
  • U.S. v. Santana
    • United States
    • U.S. District Court — Southern District of New York
    • 20 janvier 2011
    ...deprive the defendant of the ability to make an intelligent decision regarding whether to plead guilty). But see United States v. Bogle, 689 F.Supp. 1121, 1127–28 (S.D.Fla.1988) (constitutional challenge to Guidelines ripe only with respect to those defendants who had pled guilty, not those......
  • U.S. v. Harrington
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 25 octobre 1991
    ...sentence by judge), overruled by United States v. Vizcaino, 870 F.2d 52 (2d Cir.1989); United States v. Bogle, 689 F.Supp. 1121, 1163 (S.D.Fla.1988) (en banc) (Aronovitz, J., concurring) (finding Guidelines unconstitutional on due process grounds), overruled by United States v. Perez-Garcia......
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2 books & journal articles
  • Gridland: an allegorical critique of federal sentencing.
    • United States
    • Journal of Criminal Law and Criminology Vol. 96 No. 1, September - September 2005
    • 22 septembre 2005
    ...877 F.2d 664, 666 (8th Cir. 1989) ("[S]entencing has been relegated to a somewhat mechanical process."); United States v. Bogle, 689 F. Supp. 1121, 1163 (S.D. Fla. 1988) (Aronovitz, J., concurring) (describing federal sentencing as a "mechanistic administrative (81) G. Thomas Esele, The Sen......
  • Distinguishing offense conduct and offender characteristics in modern sentencing reforms.
    • United States
    • Stanford Law Review Vol. 58 No. 1, October 2005
    • 1 octobre 2005
    ...Commission amendments that seemed to overrule judicial efforts to consider offender characteristics). (34.) United States v. Bogle, 689 F. Supp. 1121, 1163 (S.D. Fla. 1988) (Aronovitz, J., concurring); see also United States v. Justice, 877 F.2d 664, 666 (8th Cir. 1989) (suggesting that, un......

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