US v. Brown

• Citation: 690 F. Supp. 1423
• Decision Date: 26 July 1988
• Docket Number: Crim. No. 88-00010-01.
• Parties: UNITED STATES of America v. William Waddell BROWN, Jr.
• Court: U.S. District Court — Eastern District of Pennsylvania

690 F. Supp. 1423

UNITED STATES of America v. William Waddell BROWN, Jr.

Crim. No. 88-00010-01.

United States District Court, E.D. Pennsylvania.

July 21, 1988.

As Amended July 26, 1988.

COPYRIGHT MATERIAL OMITTED

Linda Dale Hoffa, Asst. U.S. Atty., Philadelphia, Pa., for plaintiff.

Quentin Z. Brooks, Philadelphia, Pa., for defendant.

MEMORANDUM

NEWCOMER, District Judge.

I have before me defendant William Waddell Brown's various presentencing motions attacking both the applicability and the validity of the sentencing guidelines that were promulgated by the United States Sentencing Commission (Commission) pursuant to the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991-998 (1987). For the reasons stated below, I find the guidelines unconstitutional.

I. Factual Background

Defendant was arrested on November 25, 1987 on charges of illegally manufacturing methamphetamine and phenyl-2-proponone in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). The Court found defendant guilty on all counts after a bench trial held April 4-5, 1988. Defendant's motion for a new trial was denied July 12, 1988. Defendant thereafter filed two motions challenging the sentencing procedure that will apply to his case.

II. Parties' Contentions

Defendant initially argues that the sentencing guidelines should not apply to the "manufacturing" counts of the indictment, counts one and two, because the government failed to prove that criminal conduct occurred after November 1, 1987, the effective date of the guidelines. In the alternative, defendant contends that the sentencing guidelines are invalid because they are unconstitutional. Defendant claims that the guidelines are unconstitutional on two grounds: (1) the Sentencing Reform Act and the sentencing guidelines violate the due process right of the defendant to present evidence and to challenge the basis of his sentence before a Court which has the authority to weigh the evidence and determine an appropriate sentence; and (2) the Sentencing Commission formed pursuant to the Sentencing Reform Act of 1984 offends the doctrine of separation of powers because it (a) is located in the judicial branch, (b) requires the service of at least three Article III judges, and (c) is subject to the President's removal power.

The government first suggests that this court should defer deciding the constitutional issues in this case until the United States Supreme Court rules on a case involving similar issues that will be heard this fall.¹ In the alternative the government claims the guidelines are clearly valid on due process grounds. Regarding the separation of powers issue, the government claims that the Sentencing Commission is an executive agency performing the executive functions of implementing the sentencing policy considerations established by Congress. It is the government's position that the Court should sever from the Sentencing Reform Act those provisions of 28 U.S.C. § 991(a) in which Congress designates the Commission as an independent commission in the judicial branch to avoid separation of powers problems altogether.

The Sentencing Commission was granted leave to file an amicus curiae brief by an order of this Court dated July 14, 1988. The Commission, unlike the government, contends that it is properly located in the judicial branch, and that its functions are judicial because it issues rules that are designed solely to assist federal judges in pronouncing and imposing sentences. The Commission states that Congress can delegate a wide variety of nonadjudicative duties to the judicial branch, so long as these duties can reasonably be classified as being in aid of the judicial role. Further, judges can serve on the Commission because they do so in an individual, rather than judicial capacity. Finally the President's power to remove commissioners does not impose unreasonable executive branch control over the commission.

III. Discussion

A. The Court Will Not Defer its Decision

Contrary to the government's suggestion, the Court will not defer its decision in this case simply because a case that is similar in some issues has recently been granted certiorari by the United States Supreme Court. United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.1988) (en banc) cert. granted sub nom United States v. Mistretta, ___ U.S. ___, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988).² Because it involves both similar and separate and distinct issues, Johnson will not necessarily resolve the issues raised by defendant's motions. Further, the Supreme Court is not hearing argument until its fall term. The Court will probably not deliver a decision until late fall or the end of 1988 at the earliest. It would be patently unfair to make defendant wait that long to receive sentences for his crimes.

The issues raised by defendant, or other similar issues, have been decided in at least 194 cases before district courts. Since the effective date of the sentencing guidelines, at least 78 district court judges have denied challenges to the guidelines and 116 district court judges have declared the guidelines unconstitutional. See Government's brief at p. 2-3. Appeals challenging the guidelines are pending in the Second, Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth and Eleventh Circuit Courts of Appeals. See Appendix A to this opinion for a review of some of the relevant authority. The holdings of the district courts vary in both result and reasoning.³ Despite the diversity of rationale and result in the opinions, all courts agree that speedy appellate review will be a welcome development.

Although it would probably be difficult to add much to the extensive judicial discussion on the constitutional issues involved in this case, the federal criminal justice system should not be put "on hold" pending appellate review. Finding that defendant has standing to proceed and that all issues are ripe⁴ for decision, I will consider defendant's motions.

B. The Guidelines Apply to Defendant's Case

Defendant argues that the sentencing guidelines should not be used in determining his sentence because the government did not establish that defendant manufactured methamphetamine and phenyl-2-proponone after November 1, 1987, the effective date of the sentencing guidelines. Defendant's claim is erroneous. By an order dated July 12, 1988 this Court denied defendant's motion for a new trial which asserted a similar argument that the government did not prove that defendant manufactured the substances and that he did it "on or about" November 25, 1987. For the same reasons stated in this Court's order of July 12, 1988, the Court now holds that sufficient evidence was offered at trial to prove that defendant was manufacturing the relevant substances after the effective date of the sentencing guidelines, November 1, 1987. The guidelines therefore apply to defendant's case in its entirety.

C. The Sentencing Commission and Guidelines

A brief history of the Sentencing Commission and the sentencing guidelines will aid the court's analysis.⁵ Congress created the United States Sentencing Commission in the Sentencing Reform Act of 1984, 28 U.S.C. § 991(a), to devise sentencing guidelines for the federal courts. The Commission is an ongoing organization composed of seven voting and two nonvoting members appointed by the President with the advice and consent of the Senate, 28 U.S.C. § 991(a). Of the seven voting members, three must be federal judges selected from a list of six judges recommended by the Judicial Conference. A member of the Commission may be removed by the President "only for neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. § 991(a).

Under the Act, the Commission is directed to "establish sentencing policies and practices for the federal criminal justice system ... and develop means of measuring the degree to which the sentencing, penal, and corrective practices are effective in meeting the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code." 28 U.S.C. § 991(b). The Commission is further directed to:

Promulgate and distribute to all courts of the United States and to the United States Probation System—(1) guidelines, as described in this section, for use of a sentencing court in determining the sentence to be imposed in a criminal case, and ... (2) general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation that in the view of the Commission would further the purposes set forth in section 3553(a)(2) of Title 18, United States Code....

28 U.S.C. § 994(a).

Pursuant to this directive, the Commission promulgated an extensive set of guidelines that federal judges must apply when sentencing defendants for offenses committed after November 1, 1987. The purpose of the guidelines is to provide certainty and fairness in sentencing and to avoid disparities between sentences imposed on similar offenders for similar offenses. See 28 U.S. C. § 991(b)(1)(B).

In pursuit of this goal, the Commission created a set of tables from which various numerical values are derived and used to determine the offender's ultimate sentence. A defendant may only be sentenced outside the guidelines where "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines...." 18 U.S.C. § 3553(b). Furthermore, departure from the guidelines is warranted only if the factor is present to a degree substantially in excess of that which ordinarily is involved in the offense of conviction. Sentencing Guidelines, § 5K2 (Policy Statement). Factors such as age, educational and vocational skills, mental and emotional conditions, physical condition, including drug abuse, previous employment record, family ties...