US v. Smith, No. 87-CR-374.

• Court: United States District Courts. 10th Circuit. United States District Court of Colorado
• Writing for the Court: Charles Szekely, Asst. Federal Public Defender, Denver, Colo., for defendant
• Citation: 686 F. Supp. 847
• Parties: UNITED STATES of America, Plaintiff, v. Bernard SMITH, Defendant.
• Docket Number: No. 87-CR-374.
• Decision Date: 25 March 1988

686 F. Supp. 847

UNITED STATES of America, Plaintiff,
v.
Bernard SMITH, Defendant.

No. 87-CR-374.

United States District Court, D. Colorado.

March 25, 1988.

686 F. Supp. 848

COPYRIGHT MATERIAL OMITTED

686 F. Supp. 849

Catharine M. Goodwin, Asst. U.S. Atty., Denver, Colo., for plaintiff

Charles Szekely, Asst. Federal Public Defender, Denver, Colo., for defendant.

MEMORANDUM OPINION AND ORDER

KANE, District Judge.

I BACKGROUND

On December 9, 1987 Bernard Smith was indicted for the offense of escape from custody in violation of 18 U.S.C. § 751. On January 15, 1988 he entered a plea of guilty to the offense. Presently, he awaits sentencing.

The offense was committed on November 29, 1987. Defendant therefore falls to be sentenced according to the terms of the Sentencing Reform Act, 1984, 28 U.S.C. §§ 991-98 (1987), since it applies to offenses committed after November 1, 1987.

Smith has moved to declare the Sentencing Reform Act of 1984 constitutionally invalid. Similar motions have been filed by defendants throughout the country. Three courts to date have fully addressed this issue. In United States v. Ira Russell Arnold, 678 F.Supp. 1463 (S.D.Cal.1988), the United States District Court for the Southern District of California declared the Act unconstitutional. An order adopting the reasoning of that case was issued in United States v. Manley, No. 87-1290-R, slip op. (S.D.Cal. Feb. 18, 1988). A similar order was issued in Texas in United States v. James Alton McLean, No. B-87-544, slip op. (S.D.Tex. March 2, 1988) available on WESTLAW, 1988 WL 90378. In United States v. Ruiz-Villaneuva, Linares, Santee and Casarez, 680 F.Supp. 1411 (S.D. Cal.1988) another judge of the Southern District of California ruled the Act constitutional. In United States of America v. Michael Chambless et al., 680 F.Supp. 793 (E.D.La.1988), the Act was also declared constitutional. The reasoning of Chambless was adopted in United States v. Antonio Jose Franco, et al., No. 87-44, (E.D.Ky. March 18, 1988). A written opinion is awaited in this case. In Federal Defenders of San Diego v. U.S. Sentencing Commission, 680 F.Supp. 26 (D.D.C.1988) a similar action was dismissed on the grounds plaintiffs lacked standing.

No standing issue arises in this case.

II THE SENTENCING REFORM ACT

The Sentencing Reform Act of 1984 represented the culmination of over ten years of effort commenced in 1971 by the National Commission on Reform of Federal Criminal

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Laws.¹ The determination to overhall the traditional federal sentencing framework sprang from a deep-rooted dissatisfaction with a perceived lack of comprehensiveness and consistency in federal sentencing and the limited availability of sentencing options under the old system, see Sen. Rep. No. 98-225, 37-50 (98th Cong. 2nd Session, September 14, 1983), U.S.Code Cong. & Admin.News 1984, pp. 3182, 3220-3232.²

To this end, Congress established the new and not uncontroversial sentencing system at issue in this case.³ The fulcrum of the Sentencing Reform Act is the United States Sentencing Commission, 28 U.S.C. § 991. It is styled `an independent commission in the judicial branch of the United States', § 991(a).<sup>4</sup> Its seven voting members and one non-voting member are appointed by the President and are removable by him only for neglect of duty, malfeasance in office or `for other good cause shown', id. Three of the voting members must be federal judges, id. These three members are selected from a group of six recommended to the President by the Judicial Conference of the United States, id. A federal judge may serve as a member of the commission without resigning from his position on the bench, 28 U.S.C. § 992(c). The voting members of the commission are appointed for terms of no more than six years, and no member may serve more than two full terms, 28 U.S.C. § 992(a) and (b). The commission acts by an affirmative vote of at least four voting members, 28 U.S.C. § 994(a). One of the seven voting members of the commission is appointed chairman by the President, § 991(a). The chairman of the commission is responsible for convening and presiding at commission meetings, § 993(a). He is further responsible for preparing requests for appropriations for the commission and for directing the use of commission funds, § 993(b). The commissioners serve full time for the first six years of the guidelines coming into effect. Thereafter, the voting members, with the exception of the chairman, serve part time as necessary to perform the duties and powers of the commission, § 992(c). There is no prohibition in the statute upon a federal judge being appointed

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chairman.⁵

The purposes of the commission are two fold. First, it is directed to establish sentencing policies and practices for the federal criminal justice system which assure the realization of the purposes of sentencing set forth in 18 U.S.C. § 3553(a)(2)⁶, provide certainty and fairness in meeting those functions and reflect advances in the understanding of human behavior insofar as relevant to the criminal justice process, § 991(b)(1). Second, it is designed to develop means of measuring the extent to which sentencing practices are effective in meeting the stated purposes of sentencing. 28 U.S.C. §§ 994 and 995 then set forth respectively the duties and powers with which Congress has equipped the commission to facilitate an effective realization of these purposes.

§ 994(a) obliges the commission to establish guidelines for the use of a sentencing court in determining the sentence to be imposed in a criminal case. These guidelines must include a determination whether to impose a sentence of imprisonment, probation or a fine, a determination of the appropriate amount of a fine, and length of period of probation or term of imprisonment, a determination of whether sentence to a term of imprisonment should include a requirement of supervised release, and a determination whether multiple sentences to terms of imprisonment should run concurrently or consecutively, § 994(a)(1). § 994(b) then provides,

(1) The commission in the guidelines promulgated pursuant to subsection (a)(1), shall, for each category of offense involving each category of defendant, establish a sentencing range that is consistent with all pertinent provisions of title 18, United States Code.

(2) If a sentence specified by the guidelines includes a term of imprisonment, the maximum of the range established for such a term shall not exceed the minimum of that range by more than the greater of 25 per cent or 6 months, except that, if the minimum term of the range is 30 years or more, the maximum may be life imprisonment.

In establishing categories of offenses for use in the guidelines, the commission must consider the grade of the offense, the harm caused by the offense, the public concern generated by the offense, the deterrent effect a particular sentence will have on the offense, and the current incidence of the offense, § 994(c). In considering categories of defendants a further list of factors must be considered including age, education community ties and role in the offense, § 994(d).

The commission is then directed to draw up `general policy statements regarding application of the guidelines or any other aspect of sentencing or sentence implementation' that will further the purposes outlined in 18 U.S.C. § 3553(a)(2), § 994(a)(2). These policy statements must negotiate the possible use of sanctions, conditions of probation and supervised release, sentence modifications, imposition of fines, plea agreement authorities and implementations, guidelines for the revocation of probation and temporary release provisions and pre-release custody.

In promulgating the guidelines, the commission is directed to take into account the nature and capacity of federal penal institutions and is obliged to make recommendations concerning any changes in those facilities necessitated by the guidelines, § 994(g). It must further consider factors such as the treatment to be allotted to first offenders, rehabilitation, incremental penalties, and substantial assistance rendered by a defendant in the investigation or prosecution of another person who committed an offense, § 994(j)-(m). The act also provides

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more specific guidance regarding certain categories of defendants including those with prior convictions or those who commit violent crimes, § 994(h), (i). The commission must make recommendations to Congress dealing with the maximum utilization of resources to deal effectively with the Federal Prison Population, § 994(q). It must make recommendations on an ongoing basis to Congress regarding the modification of the guidelines including the grades or maximum penalties of those offenses for which it sees fit, § 994(p), (r), (t), (u). The commission's duties also include conferring with specified organizations and the collecting and distributing of information. The commission has a duty to consider any petition filed by a defendant requesting modification of the guidelines as utilized in the sentencing of that defendant, § 994(s). Each judge must submit to the commission a report of every sentence handed down under the guidelines, § 994(w)

§ 995 then delineates the powers of the commission. These are largely of an administrative nature, but include the power to establish research and development programs § 995(a)(12), to issue to probation officers instructions concerning the application of the guidelines and policy statements § 995(a)(10), to publish data and to collect and disseminate information, § 995(a)(14), (15). This section provides that a simple majority of the membership of the commission shall constitute a quorum for the conduct of business, § 995(d).

The guidelines currently controlling were promulgated by the Commission on April 13, 1987, as amended on December 15, 1987 and January 5, 1988. Their character was well described by the...