US v. Myers

Decision Date11 April 1988
Docket NumberNo. CR 87-0902 TEH.,CR 87-0902 TEH.
Citation687 F. Supp. 1403
PartiesUNITED STATES of America, Plaintiff, v. Bruce Allan MYERS, Defendant.
CourtU.S. District Court — Northern District of California

COPYRIGHT MATERIAL OMITTED

Nanci Clarence, San Francisco, Cal., for defendant.

Marla J. Miller, San Francisco, Cal., for U.S.

ORDER

THELTON E. HENDERSON, District Judge.

This matter comes before the Court on defendant's motion to declare the Sentencing Reform Act unconstitutional or inapplicable to him. Defendant is charged with one count of theft of government property, a violation of Title 18, United States Code, Section 641. Defendant contends that the Sentencing Reform Act violates the non-delegation and separation of powers doctrines of the United States Constitution. He also asserts that the sentencing guidelines promulgated under the Act violate the Act's statutory mandate. After extensive consideration of the parties' papers and oral arguments, including those of Amicus Curiae Sentencing Commission, this Court hereby upholds the guidelines.1 However, the Court finds that one provision of the Act, 28 U.S.C. § 991(a), the removal provision, is unconstitutional. The Court hereby severs that provision from the statute, but otherwise sustains the guidelines' constitutional and statutory validity.

I. The Sentencing Reform Act of 1984.

On October 12, 1984, President Reagan signed into law the Comprehensive Crime Control Act of 1984, Pub.L. 98-473, 98 Stat. 1976, 2017 ("CCCA"), codified in numerous titles. Chapter II of the CCCA, the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991-998, radically alters the both the procedures used to sentence defendants in federal courts, and the degrees of punishment they will receive.

Prior to the passage of this Act, Congress had conferred vast discretion on district judges to determine appropriate sentencing. Though Congress established a range of sentences, courts were empowered "to consider aggravating and mitigating circumstances surrounding an offense, and, on that basis, to select a sentence with a range defined by the legislature." United States v. Grayson, 438 U.S. 41, 46, 98 S.Ct. 2610, 2613, 57 L.Ed.2d 582 (1978). In addition, the Federal Probation Act of 1925, now 18 U.S.C. § 3651, authorized courts to order probation if doing so would serve "the ends of justice and best interests of the public, as well as the defendant." Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155, 77 L.Ed. 266 (1932). The indeterminancy and lack of congressional control over sentencing was compounded by the Parole Commission, which had the discretion to determine when prisoners had become sufficiently rehabilitated to warrant release. Thus, the pre-Act system was one in which "indeterminate sentences the ultimate termination of which are sometimes decided by non-judicial agencies have to a large extent taken the place of the old rigidly fixed punishments." Williams v. New York, 337 U.S. 241, 248, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337 (1949).

Dissatisfied with the disparities in sentencing that this system engendered, Congress enacted several reforms to limit sentencing discretion. Congress both enacted the parole guidelines promulgated by the Parole Board, 18 U.S.C. §§ 4201-4218, and empowered the Judicial Council to formulate advisory sentence guidelines, 28 U.S.C. § 334(a). However, as the Senate Report accompanying the Act states, Congress concluded that these reforms did not solve the system's perceived flaws. Instead, Congress found that the concepts of indeterminate sentencing and parole release were based on an outdated and inappropriate rehabilitation model. S.Rep. No. 225, 98th Cong., 2nd Sess. 37, 38-40 (1983) (hereafter "S.Rep.") (reprinted in 1984 U.S. Code Cong. & Admin.News 3182). More importantly, Congress noted that "every day 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. at 38, 1984 U.S.Code Cong. & Admin.News, 3221. Congress traced these disparities to the "unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence." Id. at 38, 1984 U.S.Code Cong. & Admin. News 3221. The sentencing disparities, compounded by the "second-guessing" and lack of cooperation between the sentencing judge and the parole board, created a system that "lacked the sureness that criminal justice must provide if it is to be ... an effective deterrent against crime." Id. at 49-50, 1984 U.S.Code Cong. & Admin.News 3232, 3233.

The Act arises from, and attempts to solve, the problem of disparity. The central feature of the Act is the creation of the Sentencing Commission. The Act establishes the Commission within the judicial branch, 28 U.S.C. § 991(a) (1982 ed., Supp. III 1985). It consists of seven voting members and two non-voting, ex officio members — the Attorney General and the chairman of the Parole Commission. The President appoints the members, with advice and consent of the Senate for six year terms. At least three of the members "shall be Federal judges selected after considering a list of six judges recommended to the President by the Judicial Conference of the United States." Id. The President may remove members of the Commission for "neglect of duty or malfeasance in office or for other good cause shown." Id.

The Commission is charged with the task of promulgating "guidelines ... for the use of a sentencing court in determining the sentence to be imposed in a criminal case ..." 28 U.S.C. § 994(a)(1). The guidelines are intended to carve out a defined range of sentences, and curtail "the previously broad sentencing discretion of federal judges." United States v. Ruiz-Villanueva, supra at 1413.

Congress required the Commission to adhere to two distinct sets of legislative purposes. First, the Commission must base the guidelines on four traditional rationales for punishment: just punishment, deterrence, incapacitation, and rehabilitation. 28 U.S.C. § 991(b)(1)(A). Second, the Commission must ensure that the guidelines create sentencing certainty and fairness, and eliminate unjustified disparities in sentencing. 28 U.S.C. § 999(b)(1)(B).

In addition to establishing "these overarching purposes and policies, Congress also identified many of the specific factors to be considered in constructing the Guidelines." Ruiz-Villanueva at 1413. The Commission was directed to establish categories of offenses based on the grade of the offense, its mitigating or aggravating circumstance, the nature and degree of its harm, the community's view of the offense and the public concern generated by it, the deterrent effect of a particular sentence on the offense, and the current incidence of the offense in the community and the nation. 28 U.S.C. § 994(c). Similary, Congress directed the Commission to establish categories of offenders based on the offender's age, education, vocational skills and employment record, mental and physical condition, family and community ties, role performed in the offense, criminal history, and degree of dependence upon crime. 28 U.S.C. § 994(d). In addition, Congress provided more detailed guidance in latter subsections. Congress instructed the Commission to provide stiff sentences for 1) violent offenses, 28 U.S.C. § 994(h); 2) drug-related offenses, Id.; and 3) recidivists, 28 U.S.C. § 994(i), but avoid inappropriately heavy sentences for first-time offenders who have not committed violent crimes. 28 U.S.C. § 994(j). As Judge Enright notes in Ruiz-Villanueva, this combination of general and specific legislative instruction "provided the Commission with the makings of a blueprint for the Guidelines." Ruiz-Villanueva at 1414.

On April 13, 1987, the Commission completed its work and sent the guidelines to Congress. The Commission grouped offenses into 43 separate categories and offenders into six categories. The Commission then plotted a matrix of coordinates for offenses and offenders, producing a detailed grid of sentences. United States Sentencing Commission Guidelines Manual ("guidelines") at 5.2. The Commission estimated that these guidelines would apply to ninety percent of federal criminal cases. Ruiz-Villanueva at 1415. Since Congress took no action within six months after receiving the guidelines and an accompanying report, the guidelines became effective on November 1, 1987, Pub.L. 98-473, § 235(a)(1)(B)(ii), reprinted at 18 U.S.C. § 3551.2 As a result, federal judges must now apply the sentence prescribed by the guideline, unless the judge finds that a particular case involves an aggravating or mitigating circumstance that was not adequately considered by the Commission. 18 U.S.C. § 3553(b). The Commission anticipates these departures will be rare, because the "guidelines, offense by offense, seek to take account of those factors that the Commission's sentencing data indicate make a significant difference in sentencing at the present time." Guidelines at 1.7.

II. Ripeness.

Before turning to the merits of defendant's constitutional and statutory challenge, the Court must first determine whether defendant's challenge is ripe. The government argues that since defendant has not been convicted and may never be convicted of any crime, his challenge is not ripe for adjudication.

In Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1516, 18 L.Ed. 2d 681 (1967), the Supreme Court established a test to govern ripeness determinations. The Court instructed lower courts to consider the "fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."

The government does not dispute that the validity of the sentencing guidelines is "fit" for adjudication. The constitutionality of the guidelines is a pure, abstract legal issue; no specific, particularized facts need to be presented for the Court to decide the issues posed.

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    ...United States v. Kerr, 686 F.Supp. 1174 (W.D.Pa. 1988); United States v. Landers, 690 F.Supp. 615 (W.D.Tenn.1988); United States v. Myers, 687 F.Supp. 1403 (N.D.Cal.1988) (striking provision for commissioners' removal as unconstitutional); United States v. Seluk, 691 F.Supp. 525 (D.Mass. 19......
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