US v. Terrill

• Decision Date: 13 June 1988
• Docket Number: No. 88-00013-06-CR-W-JWO.,88-00013-06-CR-W-JWO.
• Parties: UNITED STATES of America, Plaintiff, v. Elana Roxanne TERRILL, Defendant.
• Court: U.S. District Court — Western District of Missouri

688 F. Supp. 542

UNITED STATES of America, Plaintiff, v. Elana Roxanne TERRILL, Defendant.

No. 88-00013-06-CR-W-JWO.

United States District Court, W.D. Missouri, W.D.

June 13, 1988.

Patrick Lysaught, Kansas City, Mo., for defendant.

Linda L. Parker, Asst. U.S. Atty., Kansas City, Mo., for plaintiff.

MEMORANDUM AND ORDERS

JOHN W. OLIVER, Senior District Judge.

I

A.

This case pends on the motion of defendant Elana Roxanne Terrill for an order declaring the Sentencing Guidelines to be invalid.¹ Defendant Terrill's suggestions in support of that motion "incorporates and adopts by reference all arguments set forth in the suggestions and briefs filed by the Office of the Federal Public Defender in support of the same motion filed February 25, March 8 and March 24, 1988 in the matter entitled United States of America v. Keith D. Thorne, 87-00280-01-CR-W-3." The government's suggestions in opposition are, in the same manner, based on the briefs filed by the Department of Justice and by the Sentencing Commission in the Thorne case.²

The briefs filed in Thorne were the same briefs considered by the Western District of Missouri judges who heard the arguments to which Judge Sachs made reference in United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.1988). Based on his consideration of the briefs filed in Thorne and the oral argument heard by the judges of this Court,³ Judge Sachs stated in his April 1, 1988 opinion in Johnson that "it is my conclusion, and I am authorized to say it is the view of three other judges of this district who have presently formed an opinion, that the Guidelines are not subject to valid challenge based on claims that (1) the Sentencing Commission lacks constitutional status or (2) there has been an unconstitutional delegation of legislative power." 682 F.Supp. at 1033-34.

Judge Sachs' opinion in Johnson shows that Judges Hunter, Bartlett, and Whipple generally agree with his view that the Guidelines are not invalid. Id. at 1033. Chief Judge Wright filed an opinion "dissenting with the results" on April 5, 1988. Id. at 1035-39. Judges Collinson, Clark, and I considered the briefs and heard the oral arguments but did not indicate any view with regard to the questions presented. Nor did Judge Stevens, who did not hear the oral arguments, express any view.

At the time Judge Sachs and Chief Judge Wright handed down their opinions in Johnson, none of the defendants in any of the criminal cases that pended on my docket had filed any motion challenging the Guidelines.⁴ Accordingly, I refused to indicate even a tentative view in Johnson in regard to the validity of the Guidelines. For I was satisfied that to have done so would have violated long-established principles of justiciability by rendering what could be no more than an advisory opinion. 13 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3529.1 at 293 (1984), citing the leading case of Flast v. Cohen, 392 U.S. 83, 96, 88 S.Ct. 1942, 1950, 20 L.Ed.2d 947 (1968), accurately states that the "oldest and most consistent thread in the federal law of justiciability is that federal courts will not give advisory opinions."⁵

The pending motion of defendant Terrill must be decided. For I now have a case properly before me for decision and I am under duty to decide it. As Chief Justice Marshall pointed out a long time ago in Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 5 L.Ed. 257 (1821): "We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given.... Questions may occur which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty." Id. 6 Wheat (19 U.S.) at 404, cited in 13 C. Wright, supra, § 3529 at 284 n. 17.

It is much easier for me to make my decision than it was for either Judge Sachs or Chief Judge Wright in Johnson. For I have the benefit of numerous opinions that have been handed down since they were required to decide Johnson.⁶ What has been said in a number of those opinions makes it unnecessary for me to do any more than cite the cases in which the questions presented by defendant Terrill's motion have been decided in accordance with my view of the applicable law.

The cases that I will cite have discussed those questions with such care and in such detail that there is little that I could add that would be helpful to the appellate courts that will ultimately make the controlling decision.

I turn therefore to the cases which, in my best judgment, properly conclude that the Guidelines are not constitutionally valid.⁷

B.

(1) United States v. Estrada, 680 F.Supp. 1312 (D.Minn.1988).

As noted above, Chief Judge Wright had the benefit of Judge Heaney's opinion in Estrada before he wrote his dissent in Johnson. Indeed, Chief Judge Wright quoted Estrada with approval in footnote 3 of his dissenting opinion in that case. Circuit Judge Heaney was sitting by designation as a district judge in the District of Minnesota when he wrote Estrada.

I agree with Judge Heaney's ultimate conclusion that the Guidelines are unconstitutional for the reasons he stated in detail.⁸

(2) United States v. Bolding, 683 F.Supp. 1003 (D.Md.1988) (1988 Westlaw 33142).

I agree with the unanimous opinion of thirteen judges of that court which was filed in support of that court's April 14, 1988 order that declared the Sentencing Reform Act of 1984 unconstitutional.

I entertain some doubt whether I would have agreed with the concluding sentences of the Bolding opinion which, after being modified by an April 20, 1988 memorandum to counsel in that case, stated:

In accordance with this ruling, Bolding will be sentenced under pre-existing law. However, we have concluded that we will, out of respect for a Congressional enactment of such magnitude, generally follow the practice of sentencing defendants committing offenses on or after November 1, 1987 under the 1984 Act until the constitutionality of the Act has been finally decided.

I need not reach that question in deciding defendant Terrill's motion or in imposing her sentence and therefore leave that question open for another day when I may be required to decide it.

(3) United States v. Lopez, 684 F.Supp. 1506 (C.D.Cal.1988) (1988 Westlaw 42403) (en banc).

The Central District of California considered twenty-nine cases En Banc pursuant to a formal order entered April 22, 1988. I agree with the majority opinion written by Senior Judge Hauk and with the ultimate conclusion of that court that the Sentencing Reform Act of 1984 and the Guidelines promulgated pursuant to the Act are unconstitutional and invalid.⁹

(4) United States v. Brodie, 686 F.Supp. 941 (D.D.C.1988) (1988 Westlaw 52990).

Although Judge Harold Greene's opinion in Brodie, like Judge Heaney's opinion in Estrada, reflects the work of a single judge, I state my agreement with Brodie because I generally agree with Judge Greene's careful analysis of the controlling Supreme Court cases.¹⁰

II

It is appropriate to add that my decision in this case has considered only the questions presented in defendant Terrill's motion and the arguments presented in the briefs filed in Thorne. Anyone who has read the numerous opinions that are currently being handed down cannot help but become familiar with a host of additional questions that may not be put in focus without conducting a plenary evidentiary hearing to determine factual questions that may be relevant under the circumstances.

Judge Leisure, for example, in his opinion in United States v. Olivencia, No. 88 CR 64 (S.D.N.Y. Apr. 20, 1988) (1988 Westlaw 36487), stated in his footnote 2 that the "Hon. Kevin Thomas Duffy, United States District Judge in this District, was highly critical of the substance of the guidelines in an oral opinion rendered recently. United States v. Martinez, 87 Cr. 1020 (KTD) (S.D. N.Y. April 11, 1988)." He stated that Judge Duffy was "concerned that `the way the guidelines were set up makes it obvious to me ... that there will be an explosion in the prison population.' Record at 4."

The question whether the Guidelines were promulgated in a manner that will cause an "explosion in the prison population" raises the question whether the Commission did, in fact, comply with the provisions of the Act that were obviously designed to prevent such an explosion from occurring. For Section 994(g) of Title 28, U.S.C., made clear that the Congress imposed two separate mandatory duties on the Commission in that section. First, Congress provided that in promulgating guidelines the Commission "shall take into account the nature and capacity of the penal, correctional, and other facilities and services available, and shall make recommendations concerning any change or expansion in the nature or capacity of such facilities and services that might become necessary as a result of the guidelines promulgated pursuant to the provisions of this chapter."

Second, and perhaps of greater importance, Section 994(g) provided that the "sentencing guidelines prescribed under this chapter shall be formulated to minimize the likelihood that the Federal prison population will exceed the capacity of the Federal prisons, as determined by the Commission."

The September 1987 issue of The Third Branch published by the Administrative Office of the United States Courts contained a report of an interview with J. Michael Quinlan, the new Director of the Bureau of Prisons. Director Quinlan is reported as saying:

My biggest concern is the growing inmate population. In 1981, our population was 24,000; today it is 44,000. The Bureau of Prisons has grown 83 percent in six and a half years and is now 58 percent over its design capacity. The projections with the sentencing guidelines and the Anti-Drug Abuse Act indicate that there may be as many as 100,000 people in the federal prisons by 1997.¹¹

The obvious question that will undoubtedly be presented in some future...