US v. Olivencia, 88 Cr. 64 (PKL).
Citation | 689 F. Supp. 1319 |
Decision Date | 20 April 1988 |
Docket Number | No. 88 Cr. 64 (PKL).,88 Cr. 64 (PKL). |
Parties | UNITED STATES of America v. Miguel OLIVENCIA, Defendant. |
Court | U.S. District Court — Southern District of New York |
Rudolph W. Giuliani, U.S. Atty., S.D. N.Y., New York City, Richard K. Williard, Asst. Atty. Gen., Robert Cynkar, Deputy Asst. Atty. Gen., Douglas Letter, Thomas Millt, Attys., Dept. of Justice, Washington, D.C., Martin Klotz, John F. Savarese, Asst. U.S. Attys., New York City, of counsel, for U.S.
Caesar D. Cirigliano, The Legal Aid Society, Federal Defender Services Unit, Phylis Skloot Bamberger, Abraham L. Clott, Henriette D. Hoffman, David F. Silver, New York City, of counsel, for defendant.
John R. Steer, General Counsel, U.S. Sentencing Com'n, Paul M. Bator, Chicago, Ill., Andrew L. Frey, Kenneth S. Geller, Stephen G. Gilles, Mayer, Brown & Platt, Washington, D.C., of counsel, for U.S. Sentencing Com'n, amicus curiae.
I. OVERVIEW
Like many other criminal defendants in federal district courts throughout the country, Miguel Olivencia challenges the constitutionality of the Sentencing Guidelines recently promulgated by the United States Sentencing Commission.1 While no Court of Appeals has yet reviewed a district court holding in this area, it is likely that one will soon have such an opportunity and that the Supreme Court will then determine the Guidelines' ultimate fate. Appellate review will be especially welcome not only because of the guidance it will provide to sentencing judges and Congress, but also because lower court opinions to date have failed to establish a widely accepted rationale either for upholding the Guidelines or for finding them, in whole or in part, to be unconstitutional. Indeed, the most striking characteristic of district court decisions thus far has been the application by different judges of widely varying, and often times contradictory, analyses.
Of the judges that have to date declared the Guidelines invalid, only one has held that the substance of the Guidelines is itself unconstitutional. See United States v. Frank, 682 F.Supp. 815 at 819 (W.D.Pa. 1988) ( ).2
Rather, the judges who have found the Guidelines unconstitutional have done so primarily on grounds that the service of judges on the Sentencing Commission violates the separation of powers principle embodied in the Constitution. However, several different approaches to the separation of powers issue have been used. Two judges have found, for example, that while the Sentencing Commission is located in the judicial branch of government, its functions are actually executive in nature — namely, to implement a congressional mandate by interpreting, monitoring, and enforcing that mandate. See United States v. Arnold, 678 F.Supp. 1463 (S.D.Cal.1988); United States v. Frank, supra. Other judges have determined that the functions of the Commission are legislative — that is, to define federal crimes and to prescribe the punishments to be applied not just in a particular case or controversy, but in all future cases. See, e.g., United States v. Estrada, 680 F.Supp. 1312 at 1317 (D.Minn. 1988)3; United States v. Tolbert, 682 F.Supp. 1517, 1522 (D.Kan.1988) (); United States v. Martinez, 87 Cr. 1020 (S.D.N.Y. April 11, 1988) (oral ruling per Duffy, J.) ("judges are not supposed to be doing legislative work."). Moreover, while judges who have found the Commission's functions to be executive have not questioned the general right of Congress to delegate the authority to establish sentencing guidelines, the Estrada court stated that the legislative function of creating sentencing guidelines should never be delegated to another branch. Similarly, in Tolbert, Hon. Patrick F. Kelly, United States District Judge, wrote that he "would concur with those who contend ... a standard should be derived which would not permit Congress to confer power which is `legislative' in character to agencies or commissions." United States v. Tolbert, 682 F.Supp. at 1522.4
Similar disparities exist in the decisions upholding the Constitutionality of the Guidelines. For example, Hon. Adrian G. Duplantier, United States District Judge, found that the Commission performs executive functions. See United States v. Chambless, 680 F.Supp. 793 (E.D.La.1988). Judge Duplantier held that the Commission does not violate separation of powers principles because the judge/commissioners serve in a non-judicial capacity, as individuals; the judges serving on the Commission can simply recuse themselves from cases involving sentencing issues; and the President is entitled to remove members of a commission performing an executive function. In contrast, Hon. William B. Enright, United States District Judge, found that the functions of the Commission are judicial — that is, to issue rules to aid performance of the judicial sentencing function. See United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Cal.1988) ( ). Judge Enright explained that no separation of powers issues are raised by the Guidelines because judges can sit on a judicial commission; the impairment of the schedules of the three commissioner/judges is a constitutionally insignificant interference with the functions of the judicial branch; and the President — even with the power to remove Commission members — does not control the Commission or the commissioners.
These disagreements over rationale are reflected in the contrary positions taken in this case by the Justice Department and the Sentencing Commission, both of which argue that the Guidelines are constitutional.5 On the one hand, the Justice Department claims that the Sentencing Commission is an executive agency, performing the executive functions of implementing, outside a case or controversy context, the sentencing policy considerations established by Congress. Government's Memorandum in Opposition to Defendant's Motion (hereinafter "Government's Memorandum") at 36. It is the Department's position that this 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, because "assigning the executive function of promulgating sentencing guidelines to the judiciary raises Article III problems." Government's Memorandum at 51. The Justice Department claims that judicial power is limited to deciding cases and controversies; that promulgation of sentencing guidelines is not a judicial function; and that it violates separation of powers principles for the President to have power to remove members of a judicial branch commission.
Unlike the Justice Department, the Sentencing Commission argues that it is indeed properly located in the judicial branch, and that its functions are judicial because "it issues rules that are expressly designed solely to assist federal judges in pronouncing and imposing sentence." Brief for the United States Sentencing Commission as Amicus Curiae (hereinafter "Commission's Brief") at 40. The Commission argues that "Congress may enlist the services of federal judges in non-adjudicative tasks that aid in the performance of the judicial function," Commission's Brief at 50; that judges can serve on the Commission because they do so in an individual, rather than judicial, capacity; and that the President's power to remove commissioners does not impose executive branch control over the Commission.
II. RIPENESS
In this case, the Justice Department argues in its brief that the issues presented in defendant Olivencia's motion are not yet ripe for adjudication. While it is true that Olivencia's challenge to an Act of Congress asks this Court to perform its "gravest and most delicate duty," Fullilove v. Klutznick, 448 U.S. 448, 472, 100 S.Ct. 2758, 2771, 65 L.Ed.2d 902 (1980), the Government's ripeness argument is nonetheless without merit.
"`Ripeness is peculiarly a question of timing,'" and "`its basic rationale is to prevent the courts, through premature adjudication, from entangling themselves in abstract disagreements.'" Thomas v. Union Carbide Agricultural Products, 473 U.S. 568, 580, 105 S.Ct. 3325, 3332, 87 L.Ed. 2d 409 (1985) (citations omitted). The question of ripeness "turns on `the fitness of the issues for judicial decision' and `the hardship to the parties of withholding court consideration.'" Pacific Gas & Electric v. State Energy Resources Conservation & Development Commission, 461 U.S. 190, 201, 103 S.Ct. 1713, 1720, 75 L.Ed.2d 752 (1983) (quoting Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967)). Where an issue is "purely legal, and will not be clarified by further factual development," Thomas, 473 U.S. at 581, 105 S.Ct. at 3333, that can "counsel in favor of finding the challenge ... ripe for adjudication." Pacific Gas & Electric, 461 U.S. at 201, 103 S.Ct. at 1720. Moreover, Id. (quoting Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 230 (1974)). See also Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923).
Applying these standards, Olivencia's challenge to the Guidelines is ripe for adjudication. The issues involved are purely legal, and there is no further factual development that could clarify those issues for this Court. Moreover, the failure of...
To continue reading
Request your trial-
US v. Weidner
......Supp. 968 . UNITED STATES of America . v. . Dale WEIDNER. . No. SCr. 88-15. . United States District Court, N.D. Indiana, South Bend Division. . ...United States, 321 U.S. 414, 426-427, 64 S.Ct. 660, 668, 88 L.Ed. 834 (1944). . In Nixon v. ...819 (D.Conn.1988) (en banc); United States v. Olivencia, 688 F.Supp. 1483 (S.D.N.Y.1988); United States v. Rosario, 687 F.Supp. ......
-
US v. Alafriz
...to be part of the judiciary cannot constitutionally be made up of members removable at the President's will, Brittman, supra; Olivencia, supra, 689 F.Supp. at 1324, cannot pass laws that some of its mandatory members may be called upon to adjudicate, Brittman, supra, and cannot contain as e......
-
US v. Mendez
...have found the guidelines unconstitutional; the remainder have upheld them. As set forth succinctly in United States v. Olivencia, 689 F.Supp. 1319 (S.D.N.Y. 1988) (Leisure, J.), these holdings vary not only in result but also in reasoning. Thus the guidelines have been found inherently to ......
-
US v. Cortes, 88 Cr. 159 (SWK).
...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......