US v. Russell

• Decision Date: 29 April 1988
• Docket Number: Crim. A. No. 1:88-CR-7-MHS.
• Citation: 685 F. Supp. 1245
• Parties: UNITED STATES of America, Plaintiff, v. Paul Richard RUSSELL, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

685 F. Supp. 1245

UNITED STATES of America, Plaintiff, v. Paul Richard RUSSELL, et al., Defendants.

Crim. A. No. 1:88-CR-7-MHS.

United States District Court, N.D. Georgia, Atlanta Division.

April 29, 1988.

Michael Kessler, Atlanta, Ga., for defendant Russell.

Carlos D. Sans, Public Defender's Office, Atlanta, Ga., for defendant Ramey.

Janis Gordon, Asst. U.S. Atty., Atlanta, Ga., for U.S.

ORDER

SHOOB, District Judge.

INTRODUCTION

Defendants Leslie Robert Ramey and Paul Richard Russell were charged in a three count indictment with robbing a bank on December 21, 1987, using a firearm during the bank robbery, and conspiring to rob the bank. Defendant Ramey was tried and convicted by the jury on all charges. Defendant Russell pled guilty to two counts of the indictment and the third count was dropped. Nothing remains to be done in this case but to impose sentence.

Because defendants' offenses occurred after November 1, 1987, defendants are now subject to being sentenced under the sentencing guidelines issued by the United States Sentencing Commission ("Commission") pursuant to the Sentencing Reform Act of 1984 ("Act"), 28 U.S.C. §§ 991-998. Both defendants move the Court to preclude application of the sentencing guidelines to their case on constitutional grounds.

They assert that the Act is unconstitutional because (1) it embodies an unconstitutional delegation of Congress' power to determine criminal sanctions; and (2) it violates separation of powers principles by conferring quasi-legislative power on federal judges, by giving the President removal power over the Commissioners, and by requiring federal judges to serve on the Commission. Defendants further contend that the guidelines promulgated by the Commission are void because they do not comply with the mandate of the enabling legislation.

The Court has considered the issues carefully and soberly, well aware of the huge number of work hours and resources that have been expended in producing the Act and the guidelines. For the reasons stated below, the Court finds that the Act is unconstitutional and that the guidelines cannot be employed.

Several district courts have recently faced similar challenges to the guidelines and have set forth the history and purpose of the Act in great detail. See, e.g., United States v. Arnold, 678 F.Supp. 1463 (S.D. Ca.1988); United States v. Ruiz-Villanueva, 680 F.Supp. 1411 (S.D.Ca.1988). This Court will therefore dispense with discussing the background of the Act and will deal immediately with defendants' constitutional arguments.

I. Non-Delegation Doctrine

Defendants here assert that the sentencing guidelines were promulgated pursuant to an unconstitutional delegation of power by Congress. Defendants invoke the long-dormant "non-delegation" doctrine. They argue first that Congress may never delegate its power to determine criminal sanctions; and, second, even if it may, that Congress has not sufficiently articulated its policy choices or defined the scope of the delegated authority.

Under the Act the task assigned to the Commission is to promulgate binding guidelines that virtually mandate that a judge impose a specified sentence within a narrowly circumscribed range. Defendants maintain that the process of determining the range of available criminal penalties is so fraught with ethical and moral questions and policy determinations that it is a task that cannot constitutionally be delegated to a commission that is not elected and is insulated from public scrutiny. This position has some support in recent case law,¹ but has never obtained a majority. The Supreme Court has invalidated a statute as an undue delegation of legislative power only twice. See A.L.A. Shechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446 (1935). In each of these cases the Supreme Court found the legislative act invalid because it did not set forth intelligible principles to guide the exercise of the authority delegated. Otherwise the Supreme Court has consistently upheld Congress' power to delegate. See Synar v. United States, 626 F.Supp. 1374, 1383-84 (D.D.C.), aff'd on other grounds sub nom., Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181, 92 L.Ed. 2d 583 (1986). It has not found that some functions of Congress are so fundamental that they may not be delegated. See id. at 1385 (rejecting "core function" analysis of legislative delegation issues). Thus, although "intelligible principle" analysis leaves many aspects of legislative delegation unexplored,² this Court will not generate a new method of analyzing delegation issues.

Moreover, the Court will not engage in a lengthy discussion of the application of the existing analysis to this Act because several courts have recently done so. See, e.g., Arnold, supra, at 1466-69; Ruiz-Villanueva, supra, at 1415-17. Simply stated, the Court has reviewed and compared delegations previously adjudicated and concludes that the Act contains ample "intelligible principles" to orient the Commission.

II. Separation of Powers Issues

Constitutional separation of powers is so fundamental to our governmental system that every school child learns about our system of checks and balances. The division of power among three branches was effected by the Framers to prevent concentration of too much power in too few hands, or, in other words, to "diffuse power the better to secure liberty." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635, 72 S.Ct. 863, 870, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). The Constitution bestows distinct authority on each of three departments of government and gives each branch limited powers over the others.

The Framers provided a vigorous legislative branch and a separate and wholly independent executive branch, with each branch ultimately responsible to the people. The Framers also provided for a judicial branch equally independent with "the judicial Power ... extending to all Cases in Law and Equity, arising under this Constitution, and the Laws of the United States." Art. III, § 2.

Bowsher, 106 S.Ct. at 3186.

The principle of separation of powers may be violated when one branch interferes impermissibly with another's performance of its constitutionally assigned function, or when one branch assumes a function that is entrusted to another. INS v. Chadha, 462 U.S. 919, 963, 103 S.Ct. 2764, 2790, 77 L.Ed.2d 317 (1983) (Powell, J. concurring in judgment). See also In re Sealed Case, 838 F.2d 476, 511 (D.C.Cir. 1988). One branch cannot expand its power even if the expansion is authorized by another branch. See Buckley v. Valeo, 424 U.S. 1, 123, 96 S.Ct. 612, 684, 46 L.Ed.2d 659 (1975). Defendants argue convincingly here that several aspects of the Act violate the separation of powers doctrine. Specifically, they argue that (1) the placement of the Commission in the judiciary; (2) the requirement that Article III judges serve on the Commission; and (3) the vesting in the President of appointment and removal power over the commissioners, are all unconstitutional.

Much has been written recently about the constitutional ramifications of placing the Commission in the judiciary. In this district, Judge Tidwell found that the existence of the President's power to remove commissioners establishes the Commission as an executive rather than judicial agency. United States v. Erves, No. CR 87-478A (N.D.Ga. March 22, 1988). Judge Brewster of the Southern District of California found that the duties and powers of the Commission —interpreting, monitoring and enforcing the mandate of the statute as laid out by Congress—constitute executive function that cannot be constitutionally assigned to the judiciary. Arnold, supra, at 1469; Accord United States v. Tolbert, 682 F.Supp. 1517, (D.Kan.1988). On the other hand, Judge Enright of the Southern District of California decided that the task of the Commission is properly placed in the judicial branch because it acts in aid of the "primarily judicial" function of sentencing. Ruiz-Villanueva, supra, at 1422. Because these decisions discuss this issue at great length, this Court will state its view of the placement of the Commission only summarily.

The Act establishes a Commission in the judicial branch whose primary duty is to promulgate guidelines to be used in sentencing criminal defendants. See 28 U.S.C. § 991(a). Although some non-adjudicatory rule making has been held to be compatible with the Constitutional mandate that Article III judges restrict their activities to cases and controversies, see Sibbach v. Wilson & Co., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479 (1941), the power bestowed on this Commission falls outside of the scope of the judicial function. The sentencing guidelines are not simply guideposts to aid the exercise of judicial discretion. The federal sentencing guidelines, like the Florida guidelines challenged in Miller v. Florida, ___ U.S. ___, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987), are substantive rules that place rigid restrictions on the discretion of the sentencing judge. They reduce the role of the sentencing judge to filling in the blanks and applying a rigid, mechanical formula. Thus, in promulgating the guidelines the Commission does not act simply "in aid of the judicial function." It acts in place of the judge. In this way, the Commission is distinct from the other rule making bodies within the judicial branch, such as the Judicial Conference, the Advisory Committee on the Federal Rules of Civil Procedure, the federal probation service and the Administrative Office of the United States Courts. See Sibbach, 312 U.S. at 14, 61 S.Ct. at 426. In promulgating binding guidelines outside of the context of a case or controversy, the Commission is fleshing out the details of a statutory scheme to implement the legislative mandate. That task is "the very essence of `execution of the law.'" Bowsher, 106 S.Ct....