US v. Cortes, 88 Cr. 159 (SWK).

• Decision Date: 07 October 1988
• Docket Number: No. 88 Cr. 159 (SWK).,88 Cr. 159 (SWK).
• Citation: 697 F. Supp. 1305
• Parties: UNITED STATES of America v. Dezerrie CORTES, Defendant.
• Court: U.S. District Court — Southern District of New York

697 F. Supp. 1305

UNITED STATES of America v. Dezerrie CORTES, Defendant.

No. 88 Cr. 159 (SWK).

United States District Court, S.D. New York.

October 7, 1988.

Rudolph W. Giuliani, U.S. Atty. for S.D. N.Y., New York City by Cathy Seibel, Asst. U.S. Atty., for the Government.

The Legal Aid Society, Federal Defender Services Unit, New York City by Ruth M. Chamberlin, for defendant.

MEMORANDUM OPINION AND ORDER

KRAM, District Judge.

Defendant Dezerrie Cortes challenges the Sentencing Guidelines ("the Guidelines") promulgated by the United States Sentencing Commission ("the Commission") as violative of the United States Constitution ("the Constitution") and the Sentencing Reform Act ("the Act"). Cortes has been charged with the distribution of, and possession with intent to distribute, cocaine in the form commonly known as "crack" in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. Defendant is currently engaged in plea negotiations with the government regarding these charges.

BACKGROUND

The Sentencing Reform Act created the Sentencing Commission, as "an independent commission in the judicial branch...." 28 U.S.C. § 991(a). The Sentencing Commission consists of seven voting members, three of whom must be federal judges selected by the President. Id. Congress delegated to the Commission the authority to create guidelines to provide a structure for evaluating the fairness and appropriateness of punishment for individual offenders, and to establish greater uniformity in sentencing. Pursuant to this mandate, the Commission created the Sentencing Guidelines at issue, which became effective on November 1, 1987, as provided for by the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat. 1837, 2017.

The defendant in the present case makes several constitutional and non-constitutional attacks on the Guidelines, the most compelling of which is that the placement of Article III judges on the Commission violates Article III and the separation of powers doctrine. Cortes further claims that the President's power to remove the judges from the Commission impairs the neutrality of the Commission, thereby violating the separation of powers and depriving her of due process of law.¹ Cortes also argues that Congress's delegation of authority to the Commission is unlawful because it fails to create adequate and sufficiently intelligible guidance to the Commission. The defendant also attacks alleged inconsistencies between the Act's provisions and the Guidelines.

DISCUSSION

Ripeness

The government raises a ripeness argument, contending that the defendant's motion to challenge the Guidelines is unfit for judicial decision until she either pleads guilty or is convicted. The defendant argues that she cannot consider a plea while the constitutionality of the Sentencing Guidelines remains at issue because, among other things, the possible range of sentence under the old law is dramatically different from that under the Guidelines. Several district courts have held that a constitutional attack on the Guidelines is a ripe controversy even though the defendant has neither plead guilty nor been tried and convicted. See, e.g., United States v. Olivencia, 689 F.Supp. 1319 (S.D.N.Y. 1988); United States v. Macias-Pedroza, 694 F.Supp. 1406 (D.Ariz.1988); United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988); United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988).

As a threshold inquiry, this Court must decide whether the defendant's constitutional challenge to the Sentencing Guidelines establishes a concrete case or controversy. Thomas v. Union Carbide Agricultural Products, 473 U.S. 568, 579, 105 S.Ct. 3325, 3332, 87 L.Ed.2d 409 (1985); Regional Rail Reorganization Act Cases, 419 U.S. 102, 138-39, 95 S.Ct. 335, 355-56, 42 L.Ed.2d 320 (1974). The basic rationale of the ripeness doctrine is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements. Thomas, 473 U.S. at 580, 105 S.Ct. at 3332.

Ripeness analysis involves a two-part consideration of "both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Abbott Labs v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed. 2d 681 (1967). On the issue of fitness for judicial decision, the government contends that since the sentencing of Cortes is a contingent event that may never occur, it is unfit for judicial consideration. As the government argues, the defendant may decide to enter a not guilty plea and thereafter be acquitted at trial. The Supreme Court, however, has held that a purely legal issue that requires no further factual development to clarify the dispute is more likely than not to be fit for review. Thomas, 473 U.S. at 581, 105 S.Ct. at 3333. Clearly, the constitutional attack on the Sentencing Guidelines presents a purely legal issue that can be resolved with no further factual development.

The second part of this analysis involves consideration of the hardships the parties would suffer if this Court refrained from considering defendant's motion. The Guidelines, if applied, would significantly limit the range of Cortes's probable sentence, creating a significant disparity between the possible range of sentences under the Guidelines as compared to pre-Guideline law.² The disparity between the prior sentencing scheme and the Guidelines highlights the uncertainty Cortes will face if forced to rely on a set of Guidelines "whose authority is undermined because its constitutionality is in question." Thomas, 473 U.S. at 581, 105 S.Ct. at 3333.

The Constitution requires that all guilty pleas be voluntarily and intelligently made. See North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970). Furthermore, the Federal Rules of Criminal Procedure require that this Court inform the defendant of, and determine that he understands, "the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law for the offense to which the plea is offered." Fed.R.Crim.P. 11(c)(1). These requirements may not be met, at least as a practical matter, if Cortes makes her plea decision before this Court determines the applicability of the Guidelines.

The requirement that a defendant know the range of possible sentences at the time she makes a guilty plea underscores the importance to the defendant of knowing the constitutionality of the Guidelines prior to her plea. In view of the substantial changes the Guidelines make in the sentencing process, Cortes's decision whether to plead guilty probably will be affected by her uncertainty as to whether the Guidelines will be applied in this case. This uncertainty creates a considerable hardship for the defendant. Upon application of the ripeness test set forth by the Supreme Court in Abbott, this Court rejects the government's ripeness argument and concurs instead with Judge Leisure of this Court that "`nothing would be gained by postponing a decision, and the public interest would be well served by a prompt resolution of the constitutionality' of the Sentencing Guidelines." U.S. v. Olivencia, 689 F.Supp. 1319, 1323 (S.D.N.Y.1988) (quoting Thomas, 473 U.S. at 582, 105 S.Ct. at 3333). This Court thus finds that the constitutionality of the Guidelines presents a ripe issue for consideration.

The Sentencing Guidelines

The defendant attacks the Guidelines on statutory and constitutional grounds. Defendant's primary non-constitutional ground is that the Sentencing Guidelines are inconsistent with, and therefore in violation of, the Sentencing Reform Act of 1984.³ The Court has reviewed this argument and concludes that the Guidelines are fully consistent with the Sentencing Act. On this point, the Court adopts the reasoning of Judge Mukasey in United States v. Mendez, 691 F.Supp. 656, 662-66 (S.D.N.Y.1988). See also U.S. v. Sumpter, 690 F.Supp. 1274 (S.D.N.Y.1988) (Conboy, J.).

The Constitutionality of the Guidelines

Defendant raises several constitutional objections to the Act and the Guidelines, the most compelling of which are that the Guidelines violate the separation of powers doctrine.⁴ The Act violates the separation of powers, according to the defendant, because the judge-commissioners are engaged in rule-making and the administration of the statute, in violation of Article III, and that by so doing the functioning of the judiciary is impaired. The defendant also claims that the removal power of the President, as chief executive and chief law enforcement officer, impairs the neutrality of the Commission, thereby violating the principle of separation of powers and depriving defendant due process of law.⁵

The Justice Department acknowledges that Congress's designation of the Sentencing Commission as a Judicial branch entity raises potentially serious constitutional problems. Government's Memorandum of Law at 51-61. In particular, the Sentencing Reform Act provides that commissioners can be removed for "neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. § 991(a). As the Justice Department admits, the broad powers of the President to remove the commissioners for, among other reasons, "other good cause shown," undermines the separation of powers by granting the President too much power over the federal judges acting as commissioners. The Justice Department argues, however, that this constitutional flaw may be cured by this Court's re-definition of the Commission as an Executive branch entity, despite Congress's designation of it as a Judicial one. Cf. United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988) (court re-defines the Commission as a independent commission in the Judicial branch).

The Justice Department's suggested categorization of the Commission as part of the Executive branch would not strip the Act of all its constitutional flaws. Furthermore, this Court is hesitant to...