US v. Landers

• Decision Date: 24 June 1988
• Docket Number: CR No. 88-20022-TU,88-20031-TU and 88-20085-TU.,88-20025-TU
• Citation: 690 F. Supp. 615
• Parties: UNITED STATES of America, Plaintiff, v. James Earl LANDERS, Defendant. UNITED STATES of America, Plaintiff, v. Jaime Valencia LIEVANO, Defendant. UNITED STATES of America, Plaintiff, v. Orlando Lenny DeLAURO, Defendant. UNITED STATES of America, Plaintiff, v. Eddie Lee MAXWELL, Defendant. UNITED STATES of America, Plaintiff, v. Michael BRAKEFIELD, Defendant.
• Court: U.S. District Court — Western District of Tennessee

690 F. Supp. 615

UNITED STATES of America, Plaintiff, v. James Earl LANDERS, Defendant.

UNITED STATES of America, Plaintiff, v. Jaime Valencia LIEVANO, Defendant.

UNITED STATES of America, Plaintiff, v. Orlando Lenny DeLAURO, Defendant.

UNITED STATES of America, Plaintiff, v. Eddie Lee MAXWELL, Defendant.

UNITED STATES of America, Plaintiff, v. Michael BRAKEFIELD, Defendant.

CR Nos. 88-20022-TU, 88-20025-TU, 88-20025-TU, 88-20031-TU and 88-20085-TU.

United States District Court, W.D. Tennessee, W.D.

June 24, 1988.

Timothy R. DiScenza, Frederick Godwin, Asst. U.S. Attys., Memphis, Tenn., for plaintiff.

W. Otis Higgs, Jr., Memphis, Tenn., Roger O. Hooban, Knoxville, Tenn., Wilbur Ruleman, Jr., Leslie I. Ballin, Kemper B. Durand, Memphis, Tenn., for defendants.

ORDER ON MOTIONS TO PRECLUDE APPLICATION OF SENTENCING GUIDELINES

TURNER, District Judge.

Each of the defendants in these cases, having been charged with federal crimes that occurred, or are alleged to have occurred, after November 1, 1987 when the Sentencing Guidelines established by the United States Sentencing Commission became effective, have filed a motion to preclude the application of such guidelines to their case.

The defendant James Earl Landers was convicted by a jury on March 24, 1988 of possession of a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1).

The defendant Jaime Valencia Lievano pleaded guilty on March 18, 1988 to a charge of conspiracy under 21 U.S.C. §§ 841(a)(1) and 846.

The defendant Orlando Lenny DeLauro likewise pleaded guilty on March 29, 1988 to a charge of conspiracy under 21 U.S.C. §§ 841(a)(1) and 846.

The defendant Edward Lee Maxwell pleaded guilty on March 24, 1988 to a charge of possession with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1).

The defendant Michael Brakefield was indicted on April 11, 1988, but has not yet been tried, on a charge of possession with intent to distribute a controlled substance under 21 U.S.C. § 841(a)(1).

The motions of these five defendants to preclude the application of the Sentencing Guidelines were consolidated, along with other cases pending before Judge Gibbons of this court, for hearing on the issues which attack the validity of the guidelines.

BACKGROUND

The Sentencing Guidelines, which are the target of these motions, were formulated by the United States Sentencing Commission, which is composed of seven voting members who are appointed by the President with the advice and consent of the United States Senate. At least three of its members are required by the statute which established the Commission, 28 U.S.C. § 991(a), to be federal judges. In addition, the Attorney General or his designee and the Chairman of the United States Parole Commission sit as non-voting members. The members all sit full-time until six years after the guidelines take effect. 28 U.S.C. § 992. The federal judges are not required to resign as federal judges. The Commission members, including the three federal judges, are subject to removal from the Commission by the President "only for neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. § 991(a).

The Commission is established by a Congressional act known as the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, 98 Stat. 1837, et seq., and is designated in the statute as an "independent commission in the judicial branch of the United States." 28 U.S.C. § 991(a).

The purposes of the Commission were delineated in the statute.

1. Establish sentencing policies and practices for the Federal Criminal Justice System that:

(a) assure that the purposes of sentencing as established by Congress at 18 U.S.C. § 3553(a)¹ are met;

(b) provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records and guilt as to similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors;

(c) reflect advancement in knowledge of behavior as it relates to the criminal justice process;

2. Develop means of measuring the degree to which the sentencing, penal, and correctional practices effectively meet the purposes of sentencing as established at 18 U.S.C. § 3553(a).

Many reasons undoubtedly led to the enactment of these sentencing revisions, and the establishment of the Commission, but the most clearly asserted reason was the belief that "Federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." S.Rep. No. 225, 98th Cong., 1st Sess. 38 (1983), reprinted in 1984 U.S.Code Cong. & Admin.News 3182, 3221. This disparity, the Senate Report added, was "traced directly to the unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence."

The Senate also reported that federal criminal sentencing was "based largely on an outmoded rehabilitation model." Congress dictated that the Commission was to promulgate "guidelines" for use of the sentencing courts in determining sentences, 28 U.S.C. § 994(a)(1), by establishing a sentencing range "for each category of defendant." 28 U.S.C. § 994(b)(1). The maximum of the range was required not to exceed the minimum by more than the greater of 25 percent or 6 months. 28 U.S.C. § 994(b)(2).

The guidelines were to include determinations of whether to impose imprisonment, probation or a fine, as well as the length of imprisonment or probation and the amount of the fine and whether sentences of imprisonment were to be served concurrently or consecutively. 28 U.S.C. § 994(a)(1).

With reference to the categories of offenses for use in the guidelines, the law requires the Commission to consider many specific factors, including the grade of the offense, mitigating or aggravating factors, the harm caused, community views and public concern, deterrent effect and the current incidence of the offense.

In establishing categories of defendants, again many factors were directed to be considered by the Commission for use in the guidelines, if they have relevance to an appropriate sentence; some of these factors were age, education, physical and mental condition, employment records, role in the offense, criminal history and the defendant's dependence on crime for a living.

The Commission, in promulgating the guidelines, was required to consider the nature and capacity of the correctional facilities, 28 U.S.C. § 994(g); multiple offenses, 28 U.S.C. § 994(1); the violence of the crime, 28 U.S.C. § 994(h)(1)(A); and that "in many cases, current sentences do not accurately reflect the seriousness of the offense," 28 U.S.C. § 994(m). Many other factors were designated for consideration by the Commission and many duties beyond the initial promulgation of guidelines were placed on the Commission.

The Commission promulgated the guidelines on April 13, 1987; these have since been amended on December 15, 1987, January 5, 1988 and June 15, 1988.

Offenses were grouped into 43 base levels, according to relative severity. Recommended sentences for each base level were figured, after a review of past sentencing practices. Consideration of certain aggravating and mitigating circumstances was allowed in order to take into account the gravity of a specific crime. The Commission also categorized offenders into six groups on the basis of their criminal history. The Commission then plotted the coordinates for offenses and offenders and produced a grid which sets out the sentencing ranges. The Commission estimated that the guidelines as originally promulgated would apply to ninety percent of all cases in the federal courts.

United States v. Ruiz-Villaneuva, 680 F.Supp. 1411 (S.D.Cal.1988).

After the passage of a statutory six-month waiting period, designed to allow Congress to reject the guidelines if it so desired, the guidelines took effect.

18 U.S.C. § 3553(b) provides that:

The court shall impose a sentence of the kind, and within the range, referred to in subsection (a)(4)² unless the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration in formulating the guidelines and that should result in a sentence different from that prescribed.

Under 18 U.S.C. § 3742, both the government and the defendant may appeal from an "incorrect application of the sentencing guidelines."

Thus it is clear that the guidelines, being mandatory, are not guidelines at all, as is conceded by the government in its brief filed May 10, 1988.

The various defendants present several arguments as to why the guidelines violate constitutional restrictions:

1. The Congressional delegation of this function (the establishment of binding sentence ranges), which is said here to be a legislative function, was improperly made to the Commission because (a) this is a core function which cannot be delegated; and (b) even if this function could be delegated by Congress, the parameters for action of the Commission are too vague because they are not set by "intelligible principle";

2. The implementing act, it is contended, violates the doctrine of separation of powers in the following respects: (a) it impermissibly places a legislative or executive function in the judicial branch of the government; (b) it impermissibly requires the judiciary to perform non-Article III (non-judicial) functions and, in doing so, impairs the ability of the judiciary to perform its constitutional tasks; and (c) it gives the executive branch of government impermissible powers of removal over Article III federal judges;

3. Constitutional requirements of due process are violated in refusing to permit the defendants input into the assessment of sentencing factors.

It is also argued by some of the defendants that the guidelines...