US v. Tolbert, 87-10091-01.

• Decision Date: 08 April 1988
• Docket Number: No. 87-10091-01.,87-10091-01.
• Citation: 682 F. Supp. 1517
• Parties: UNITED STATES of America, Plaintiff, v. Anthony J. TOLBERT, Defendant, The United States Sentencing Commission, Amicus Curiae.
• Court: U.S. District Court — District of Kansas

682 F. Supp. 1517

UNITED STATES of America, Plaintiff, v. Anthony J. TOLBERT, Defendant The United States Sentencing Commission, Amicus Curiae.

No. 87-10091-01.

United States District Court, D. Kansas.

April 8, 1988.

Richard K. Willard, Asst. U.S. Atty. Gen., Robert Cynkar, Deputy Asst. U.S. Atty. Gen., Washington, D.C., Benjamin L. Burgess, Jr., U.S. Atty. for Kan., Robin Fowler, Asst. U.S. Atty. for Kan., Wichita, Kan., for plaintiff.

Charles D. Anderson, Federal Public Defender, Marilyn M. Trubey, Asst. Federal Public Defender, Wichita, Kan., Alan Morrison, of Public Citizens Litigation Group, Washington, D.C., for defendant.

MEMORANDUM AND DECISION

PATRICK F. KELLY, District Judge.

On November 9, 1987, defendant Anthony J. Tolbert was charged by Information with the commission of a felony in violation of 18 U.S.C. § 472, which is alleged to have occurred on or about November 6, 1987.

On November 30, 1987, defendant and his counsel, the Assistant Federal Public Defender for the District of Kansas, appeared before me, at which time I accepted his plea of guilty and entered an order in connection therewith.

Given that circumstance, I directed the commencement of the presentence process pursuant to the newly enacted and effective sentencing guidelines authorized by the Sentencing Reform Act of 1984, and suspended the matter for sentencing.

Inasmuch as defendant Tolbert's case presents a first experience here, I have looked forward to the entire remaining process with a sense of anticipation. Here, I will finally experience firsthand the inner workings of the guidelines, and I will hopefully develop a modest "comfort" level in connection therewith. I say this here because, notwithstanding the considerable study and conferences taken up in advance of this moment, engagement of the sentencing guidelines appears to be an exercise of confusion, if not frustration. They are extremely complex and complicated. I say this without apology, as I am not alone.

I have anticipated firsthand experience with the sentencing guidelines for another reason—curiosity. My own review convinces me that the traditional role of the sentencing judge is to be dramatically restricted. Even so, I am ready to apply the guidelines. In this regard, whether we like it or not, each of us is duty-sworn to carry out the law faithfully—as we always have —and will.

As to the exercise of this important, lonely, and grim judicial function, however, regardless of the rather rigid requisites seemingly imposed, each of us will continue to address each case on its own merit, each one deserving of quiet, objective and fair reflection. To this extent, nothing will change, as nothing about these guidelines can ever change the sworn duties of the Article III trial judge in the exercise of this important function.

Now, perhaps to no one's surprise, the defendant has moved for an order declaring the Sentencing Reform Act unconstitutional, and to sentence him pursuant to the law which existed prior to November 1, 1987. I say I am not surprised, because the constitutional issues are being raised across the country. I have at hand the opinions entered to date,¹ including that of my colleague, the Honorable John Kane, finding the Act unconstitutional. United States v. Smith, No. 87-CR-374, slip op. (D.Col. Mar. 25, 1988). These opinions, while diverse in their analyses and conclusions, have been useful in considering the issues now before me.

On receipt of defendant's brief, I put in place a briefing schedule. The United States has fully responded; additionally, the Sentencing Commission has entered its appearance amicus curiae and has responded and argued here. Defendant has replied to all briefs. Counsel for the Public Citizen Litigation Group has additionally entered an appearance for defendant and has also participated in argument. To be sure, the issues have been fully researched and reviewed.

On April 8, 1988, I took up a lively and provocative hearing, at which time all issues were fully argued. Here, defendant contends essentially as follows:

The Sentencing Reform Act of 1984 is unconstitutional because (1) Congress failed to provide the commission with the proper framework for exercising its delegated power, in violation of the delegation doctrine; and (2) Congress improperly placed the commission in the judicial branch, gave the President removal power over the commission, and mandated that three Article III judges serve on the commission, all in violation of separation of powers principles. Each of these contentions will be considered in turn.

I. Sentencing Reform Act

Before discussing the challenges to the Sentencing Reform Act made by defendant, I will first briefly discuss the history of the Act, the purposes and composition of the commission, and the guidelines promulgated by the commission. In doing so, however, I am mindful that the parties to this action are quite familiar with the background of the Act and its "real-life" implications. Further, those courts which have previously considered the Act's constitutionality have also considered its background in some detail, and it need not be repeated in full here.

In 1984, Congress enacted the Comprehensive Crime Control Act, Pub.L. 98-473, 98 Stat. 1837. Title II of that Act, the Sentencing Reform Act of 1984 (the "Act") (codified at 28 U.S.C. § 991-98), effected a comprehensive revision to federal sentencing law. The Sentencing Reform Act grew, at least in part, out of Congress' belief that "Federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." S.Rep. No. 225, 98th Cong., 1st Sess. 38 (1983) ("S.Rep."), reprinted in 1984 U.S.Code Cong. & Admin. News 3182, 3221. Congress concluded that this alleged disparity in sentencing could be "traced directly to the unfettered discretion the law confers on those judges and parole authorities responsible for imposing and implementing the sentence." S.Rep. at 38, 1984, U.S.Code Cong. & Admin.News 3221.

Congress sought to solve these perceived problems by establishing "as an independent commission in the judicial branch of the United States a United States Sentencing Commission...." 28 U.S.C. § 991(a).

The commission consists of seven voting members and one nonvoting member. The President appoints the voting members, at least three of whom must be federal judges. The three judges are selected from a list of six judges recommended to the President by the Judicial Conference of the United States.² The commissioners are subject to removal by the President for "neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. § 991.

Congress delegated to the Sentencing Commission (or "commission") the responsibility for establishing sentencing policies and practices that "assure the meeting of the purposes of sentencing as set forth in section 3553(a)(2) of title 18, of the United States Code." 28 U.S.C. § 991(b)(1)(A). 18 U.S.C. § 3553(a)(2) defines the purposes of sentencing as deterrence of criminal conduct, protection of the public from further crimes, rehabilitation of the defendant and punishment of the defendant commensurate with the seriousness of the offense.

The commission is also directed to provide "certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors...." 28 U.S.C. § 991(b)(1)(B).

These purposes are to be met by the commission through the promulgation of sentencing guidelines "for use of a sentencing court in determining the sentence to be imposed in a criminal case...." 28 U.S.C. § 994(a)(1). The guidelines are to control the sentencing court's determination as to (1) whether to impose probation, a fine or imprisonment; (2) the appropriate amount of a fine or length of probation or imprisonment; (3) whether a defendant sentenced to imprisonment should be placed on a term of supervised release after imprisonment; and (4) whether multiple sentences to a term of imprisonment should run concurrently or consecutively. 28 U.S.C. § 994(a)(1)(A), (B), (C) & (D).

The guidelines promulgated by the commission are to establish a "sentencing range" for each category of offense involving each category of defendant. 28 U.S.C. § 994(b)(1). In any sentencing range established for a term of imprisonment, the maximum of the range is not to exceed the minimum of the range by more than 25% or six months, whichever is greater. 28 U.S. C. § 994(b)(2). In establishing the categories of offenses and defendants, Congress directed the commission to take into account a number of factors, where relevant. 28 U.S.C. § 994(c) & (d).

Pursuant to these instructions, the commission established a complex point system and "matrix" whereby the sentencing range for each defendant is determined by the intersection of the offense level and the criminal history category.

Following the effective date of the guidelines (Nov. 1, 1987), sentencing courts are required to impose a sentence of the kind, and within the range specified by the guidelines unless the court finds that an aggravating or mitigating circumstance exists that was not adequately taken into consideration by the commission in formulating the guidelines. 18 U.S.C. § 3553(b). Further, if a sentencing judge does depart from the guidelines, the judge must state in open court the basis for the departure.

II. Delegation of Power

The defendant initially contends the Sentencing Reform Act is unconstitutional because Congress failed to adequately confine the commission's exercise of the power delegated to it by Congress.

Article I, Section 1, of the United States Constitution provides that "all...