US v. Scott

Decision Date03 June 1988
Docket NumberCrim. No. 88-031-JB.
Citation688 F. Supp. 1483
PartiesUNITED STATES of America, Plaintiff, v. Bill Lee SCOTT, Defendant.
CourtU.S. District Court — District of New Mexico

COPYRIGHT MATERIAL OMITTED

William L. Lutz, U.S. Atty., C. Richard Baker, Asst. U.S. Atty., Albuquerque, N.M., for plaintiff.

David L. Norvell, Albuquerque, N.M., for defendant.

MEMORANDUM OPINION AND ORDER

BURCIAGA, District Judge.

THIS MATTER comes before the Court on Defendant Bill Lee Scott's motion for an order precluding application of the Sentencing Guidelines "Guidelines" promulgated by the United States Sentencing Commission "Commission" pursuant to the Sentencing Reform Act of 1984 "Reform Act", 28 U.S.C.A. §§ 991-98 (West Supp. 1988), on the grounds that the Reform Act violates the delegation doctrine and separation of powers.1 Scott was indicted and charged with alleged violations of title 21, sections 841(a)(1) and 841(b)(1)(C), and title 18, section 2 of the United States Code. Scott's acts were allegedly committed after November 1, 1987. Therefore, if he is found guilty of these crimes, the Guidelines would apply.

Statutory Framework

The Reform Act makes radical changes in the procedure and substance of sentencing in the federal criminal justice system. One of the primary goals of this new sentencing system is to eliminate "unwarranted sentencing disparity" by federal judges. 28 U.S.C. § 991(b)(1)(B); S.Rep. No. 98-225, 98th Cong., 1st Sess. (1983), reprinted in 1984 U.S.Code Cong. & Ad.News 3182, 3245 "Ad.News". Instead of issuing guidelines itself, Congress created the Commission as a permanent agency within the Judicial Branch, and directed it to promulgate rules and policies consistent with the parameters contained in the statutory framework enunciated by Congress. 18 U.S.C. §§ 3551-59, 3561-66, 3571-74, 3581-86.

The Commission consists of seven voting members and two ex officio non-voting members. 28 U.S.C. § 991(a). The voting members are appointed by the President of the United States with the advice and consent of the United States Senate for staggered six-year terms; they may be removed by the President only for neglect of duty, malfeasance in office or other good cause. Id. At least three of the voting members must be Article III federal judges who are recommended to the President by the Judicial Conference of the United States.

To establish a new sentencing system to replace the "largely outmoded rehabilitation model," Ad.News at 3221, Congress directed the Commission to promulgate and distribute guidelines and policy statements for federal courts to use when imposing sentences. 28 U.S.C. § 994(a)(1). The proposed guidelines were to meet the purposes of sentencing which are defined by Congress as deterrence of criminal conduct, protection of the public from further crimes, rehabilitation of the defendant, and punishment commensurate with the seriousness of the offense. 18 U.S.C. § 3553(a)(2). The Guidelines were also to provide certainty and fairness in meeting the purposes of sentencing while avoiding unwarranted disparities and maintaining sufficient flexibility to permit individualized sentences. 28 U.S.C. § 991(b)(1)(B).

Specifically, the Reform Act directed the Commission to establish guidelines covering the following sentencing determinations: 1) whether to impose a term of imprisonment, probation, or fine; 2) the appropriate amount of a fine or length of imprisonment or probation; 3) whether to require supervised release after imprisonment; and 4) whether multiple sentences should run consecutively or concurrently. 28 U.S.C. § 994(a)(1), (3). The Commission has promulgated an unprecedented, detailed and complex set of Guidelines which will apply to Defendant Scott if he is found guilty of the charges against him.

In very general terms, Scott alleges Congress has impermissibly delegated power to determine what factors are most appropriate in sentencing. Scott argues that while Congress' power to delegate is fairly liberal, it is narrowly restricted when calling for criminal sanctions or when fundamental rights are affected. Additionally, relying on the court's decision in United States v. Arnold, 678 F.Supp. 1463 (S.D. Cal.1988), Scott argues the Commission as established and constituted offends the doctrine of separation of powers by unconstitutionally locating the Commission in the Judicial Branch.

In response, the Government argues Congress has not excessively delegated authority to the Commission because the Commission is constitutionally indistinguishable from numerous "administrative" agencies set up by Congress. As to Defendant's separation of powers contention, the Government argues the three judicial members of the Commission serve in their individual, and not their Article III capacity as federal judges. The Government maintains the Commission is an executive agency with executive functions, and to avoid the separation of powers problem, the Government suggests the Court simply sever Congress' language which designates the Commission as "an independent commission in the Judicial Branch."

Standing

As an initial matter, the Court has determined that Defendant Scott has standing to challenge the validity of the Guidelines, and the issue is ripe for determination. To have standing a party must demonstrate "some actual or threatened injury." Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1607-08, 60 L.Ed.2d 66 (1979). As long as there is a certain impending injury, a party need not await the threatened injury to obtain preventative relief. Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663-64, 67 L.Ed. 1117 (1923). Ripeness involves balancing the "fitness of the issues for judicial decision" against "the hardship to the parties of withholding court consideration." Abbott Laboratories v. Gardner, 387 U.S. 136, 149, 87 S.Ct. 1507, 1515, 18 L.Ed.2d 681 (1967).

The Court finds that Defendant Scott indeed has a "personal stake" in the outcome of the issue which is necessary to meet the "case or controversy" requirements of Article III. See Buckley v. Valeo, 424 U.S. 1, 11, 96 S.Ct. 612, 631, 46 L.Ed.2d 659 (1976). Without a clear understanding of likely punishment, Defendant Scott cannot make an informed decision as to whether he should tender a guilty plea or risk trial. Therefore, the threatened injury and the hardship on Defendant Scott would be substantial. The action is fit for review because it involves purely legal issues which require no further factual development. Thomas v. Union Carbide Agricultural Products, 473 U.S. 568, 581, 105 S.Ct. 3325, 3333, 87 L.Ed.2d 409 (1985). Finally, there is nothing to gain from postponing consideration of Defendant's challenge.

Separation of Powers

Defendant Scott argues the Commission itself is an unconstitutional entity which violates the separation of powers doctrine because it is located in the Judicial Branch. Scott maintains the composition of the Commission invites federal judges to engage in legislative activities, bestows the Executive with excessive control of its membership, and threatens the independence of the judiciary.

The Government maintains the Commission is an executive body, but argues Congress simply mislabeled the Commission by placing it in the Judicial Branch. Thus, for purposes of separation of powers, both the Government and Defendant Scott apparently maintain the Commission is unconstitutional as an independent Commission in the Judicial Branch.

The Commission itself disagrees, maintaining that the Commission is an independent body in the Judicial Branch that promulgates rules to aid the judicial function of pronouncing sentence. Apparently, the Government and the Commission cannot even agree on the proper character of the Commission. This disagreement demonstrates the difficulties in determining what Congress actually did when it created the Commission, and magnifies the constitutional infirmities of a formulaic approach to sentencing.

As a preface to its separation of powers analysis, the Court notes that our tripartite system of government confers separate and distinct powers on the Executive, Legislative, and Judicial Branches. The Framers of the Constitution embraced Montesquieu's view that maintaining independence between the branches of government was essential to the preservation of liberty. Myers v. United States, 272 U.S. 52, 116, 47 S.Ct. 21, 25, 71 L.Ed. 160 (1926). The basic structure of the Constitution reflects the principle that "the accumulation of all powers legislative, executive and judiciary in the same hands, whether of one, a few or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." The Federalist No. 47, at 244 (J. Madison) (Wills ed. 1982). The separation of powers doctrine, however, does not require "three airtight departments of government." Nixon v. Administrator of General Services, 433 U.S. 425, 443, 97 S.Ct. 2777, 2790, 53 L.Ed.2d 867 (1977). Expansive delegations of authority from Congress to the Executive Branch have been tested by courts with great leniency because there is substantial overlap between powers and responsibilities of these two branches. As Justice Jackson stated:

There is a zone of twilight in which the President and Congress may have concurrent authority, or in which its distribution is uncertain.... In this area, any actual test of power is likely to depend on the imponderables rather than on abstract theories of law.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 871, 96 L.Ed. 1153 (1952) (Jackson J., concurring) (footnote omitted).

In contrast, the courts have strictly limited the enlargement of the judiciary's power. See, e.g., Hayburn's Case, 2 U.S. (2 Dall.) 408, 412, 1 L.Ed. 436 (1792). "Of the three branches it is the role of the judiciary that the Constitution most clearly and tightly confines within narrow borders." In re...

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