US v. Brittman, No. LR-CR-87-194.

• Court: United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
• Writing for the Court: EISELE
• Citation: 687 F. Supp. 1329
• Decision Date: 27 May 1988
• Docket Number: No. LR-CR-87-194.
• Parties: UNITED STATES of America, Plaintiff, v. Eric BRITTMAN, Defendant.

687 F. Supp. 1329

UNITED STATES of America, Plaintiff,
v.
Eric BRITTMAN, Defendant.

No. LR-CR-87-194.

United States District Court, E.D. Arkansas, W.D.

May 27, 1988.

687 F. Supp. 1330

Robert L. Neighbors, Asst. U.S. Atty., Little Rock, Ark., for plaintiff.

Robert L. Adcock, Green Law Offices, Little Rock, Ark., for defendant.

MEMORANDUM OPINION

EISELE, Chief Judge.

Mr. Eric Brittman, 26, has been convicted by a jury of robbing the East Branch of the First Commercial Bank of Little Rock, Arkansas. The indictment contained two counts, one charging the bank robbery under 18 U.S.C. § 2113 d, and the other a conspiracy to rob the bank based on 18 U.S.C. § 371. The latter count was dismissed upon motion of the government. The bank robbery count reads as follows:

That on or about November 16, 1987, in the Eastern District of Arkansas, ERIC BRITTMAN, by force and violence and by intimidation, did take from the person and presence of Beth Aldrich $37,148 in money belonging to and in the care, custody, control, management and possession of First Commercial Bank, East Branch, Little Rock, Arkansas, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in committing the aforesaid acts ERIC BRITTMAN did put in jeopardy the life of Beth Aldrich by the use of a dangerous weapon, that is, a handgun, all in violation of Section 2113(d), Title 18, United States Code.

687 F. Supp. 1331

Since the crime occurred after October 31, 1987, the new Sentencing Guidelines would appear to control. However, Mr. Brittman has filed a motion, and later an amended motion, to have the Sentencing Guidelines declared unconstitutional.

This Court is aware that every district court in the United States has faced, is presently facing, or will soon face such challenges. It has attempted to obtain copies of the opinions already handed down, but it is also aware that it is in the interest of all concerned to have these challenges resolved by the U.S. Supreme Court as soon as possible.

For the reasons set forth below this Court is declaring the Sentencing guidelines and the Sentencing Commission unconstitutional, but it agrees with Judge Heaney in U.S.A. v. Jesus Estrada, 680 F.Supp. 1312 (D.Minn.1988), that the following provisions of the Sentencing Reform Act are severable and should therefore remain in effect:

(a) the detailed set of principles or sentencing standards which narrow the judge's discretion in imposing sentences;

(b) the requirement that judges state their reasons for imposing particular sentences, thus opening up the sentencing process to the public.

However, the Court does not agree that the appellate review of sentences can properly be severed and preserved since the right of appeal and the scope of appeal are so intimately tied to the Guidelines themselves. Nor does the Court agree that "real time" sentencing can be severed because, without the provisions for supervised release, prisoners would go straight from imprisonment to absolute freedom contrary to congressional intent. So we go back to the pre November 1, 1987, situation with the parole arrangements intact.

Finally the Court recognizes that it ultimately may be reversed and the Guidelines and the Sentencing Commission held constitutional. It has chosen therefore to follow a "two-track" approach. It will, at the time of sentencing, state and explain what its sentence would be assuming the Guidelines are upheld. And it will also state and explain what its sentence would be if the Guidelines are struck down as unconstitutional. Of course, the sentence which will be entered on the Judgment and Commitment form will be the latter only, because that will be the only lawful sentence under the opinion of the Court. However, if the Court is reversed and the Guidelines upheld, a new Judgment and Commitment will have to be entered, but this may be done without any further sentencing hearing. This approach will, it is hoped, effect some efficiency in the light of the uncertainties involved.

The undersigned has been authorized by the other Judges of the Eastern District of Arkansas, with the exception of Judge Stephen Reasoner, to state that they agree that the Guidelines and Commission are unconstitutional, although they may not individually agree with the undersigned as to all of the different grounds set forth in the following opinion. They also agree that certain provisions, as set forth above, are severable and will therefore remain in full force and effect. Finally, they agree to follow the two-track sentencing approach described above until questions concerning the constitutionality of the guidelines are finally resolved. Judge Reasoner is not convinced that the Guidelines are unconstitutional and has no present opinion on the severability issue. He has agreed to follow the "two track" sentencing approach.

The opinion below is separated and captioned more to provide emphasis than to suggest that any of the individual sections are unrelated and independent of the others. In truth, there is much overlap, intermeshing and interplay among the various sections.

DELEGATION

The Court holds that Congress has unconstitutionally delegated its legislative authority to the United States Sentencing Commission.¹ The Constitution provides that, "All legislative powers herein granted

687 F. Supp. 1332

shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." U.S. Const. Art. I, § 1. Further, the Congress is empowered "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." U.S. Const. Art. I, § 8, cl. 18. "The Congress manifestly is not permitted to abdicate, or to transfer to others, the essential legislative functions with which it is thus vested." Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935)²

One important function of the non-delegation doctrine is to ensure that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. Indust. Union Dept. v. Petroleum Inst., 448 U.S. 607, 100 S.Ct. 2844, 2886, 65 L.Ed.2d 1010 (1980) (Rehnquist, J., concurring). The relationship between the popular will and the power to delegate has been articulated by John Locke:

The power of the legislative, being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not make legislators, the legislature can have no power to transfer their authority of making laws and place it in other hands.

Id. at 2879, (quoting J. Locke, Second Treatise of Civil Government in the Tradition of Freedom, at 244, M. Mayer, Ed. (1957)).

Of course, the foregoing discussion does not mean that Congress may never delegate any of its varied tasks to administrative agencies. First, Congress may authorize fact finding by an administrative agency. Panama Refining, 293 U.S. at 426, 55 S.Ct. at 251. Second, the Constitution does not deprive Congress of "necessary resources of flexibility and practicality, which will enable it to perform its function in laying down policies and establishing standards, while leaving to selected instrumentalities the making of subordinate rules within prescribed limits." Id. at 421, 55 S.Ct. at 248. While mindful of the complexities faced by a modern Congress, this Court is convinced that the Congress, by the creation of the Sentencing Commission and assignment of its duties, did more than simply assign fact finding tasks or subordinate rule making responsibilities to yet one more administrative agency. Rather, Congress delegated its authority in a core legislative field,³ an area affecting the most fundamental of Constitutional rights. Whalen v. United States, 445 U.S. 684, 689, 100 S.Ct. 1432, 1436, 63 L.Ed.2d 715 (1980) (within our Federal Constitutional framework the legislative power, including the power to define criminal offenses and to prescribe the punishments to be imposed upon those found guilty of them resides wholly with the Congress); United States v. Wiltberger, 18 U.S. (5 Wheat) 35, 44, 5 L.Ed. 37 (1820) (It is the legislature which is to define crime and ordain punishment).

Delegated powers that, as in this case, affect liberty interests must be construed narrowly. Kent v. Dulles, 357 U.S. 116, 129, 78 S.Ct. 1113, 1120, 2 L.Ed.2d

687 F. Supp. 1333

1204 (1958). This is because "the numerous deficiencies connected with vague legislative directives whether to a legislative committee, ...; to an executive officer, ...; to a judge and jury, ...; or to private persons, ...; are far more serious when liberty and the exercise of fundamental rights are at stake." United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1967) (Brennan, J., concurring). Indeed, the Court has implied that core "important subjects" exist which must be entirely regulated by Congress, precluding any permissible delegation. United States v. Grimaud, 220 U.S. 506, 517, 31 S.Ct. 480, 483, 55 L.Ed. 563 (1911); See J.W. Hampton, Jr. v. United States, 276 U.S. 394, 408, 48 S.Ct. 348, 351, 72 L.Ed. 624 (1928) (The Congress may not delegate its purely legislative power.). The Court holds that the Sentencing Reform Act delegates both the power to establish penalties for violations of Federal law and the power to define criminal conduct. Both of these areas lie within the limited sphere where Congress cannot constitutionally delegate its authority

Although congress may delegate some powers connected with the penal process, it may not delegate "so crucial a legislative function as the redrafting of federal criminal penalties." See U.S. Parole Comm'n v. Geraghty, 719 F.2d 1199, 1212 (3rd Cir. 1983), cert. denied, 465 U.S. 1103, 104...