US v. Weidner, No. SCr. 88-15.

• Court: United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
• Writing for the Court: MILLER
• Citation: 692 F. Supp. 968
• Parties: UNITED STATES of America v. Dale WEIDNER.
• Decision Date: 11 August 1988
• Docket Number: No. SCr. 88-15.

692 F. Supp. 968

UNITED STATES of America
v.
Dale WEIDNER.

No. SCr. 88-15.

United States District Court, N.D. Indiana, South Bend Division.

August 11, 1988.

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Rick L. Jancha, Asst. U.S. Atty., South Bend, Ind., for plaintiff.

Stephen G. Drendall, South Bend, Ind., for defendant.

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MEMORANDUM AND ORDER

MILLER, District Judge.

Defendant Dale Weidner has tendered pleas of guilty to one count of manufacture of more than 100 marijuana plants and one count of possession of marijuana with intent to distribute it, pursuant to a written plea agreement in which the government agreed that the sentences shall be concurrent. Mr. Weidner faces imprisonment for concurrent terms of up to twenty years on the first count and up to five years on the second, fines totalling as much as $1,250,000.00, special assessments of $100.00 and supervised release for at least three years.

Mr. Weidner committed these offenses on February 16, 1988, after the effective date of the sentencing guidelines promulgated by the United States Sentencing Commission pursuant to the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991-998. Mr. Weidner now moves to have the Act and the guidelines declared unconstitutional. For the reasons that follow, the court concludes that the Act and the guidelines are constitutional, and that Mr. Weidner's motion must be denied.

I. INTRODUCTION

Mr. Weidner's arguments in support of his motion are contained in a brief apparently prepared by the National Association of Criminal Defense Lawyers and filed on Mr. Weidner's behalf, but ably augmented by Mr. Weidner's appointed counsel. The court notes only the arguments discussed in the brief, and declines to address points noted only in the motion. Mr. Weidner contends the guidelines are unconstitutional because they violate his due process right to individualized sentencing, and because they violate the principle of separation of powers.

The Sentencing Reform Act of 1984, 28 U.S.C. §§ 991-998 ("the Act"), created the United States Sentencing Commission ("the Commission"), described as "an independent commission in the judicial branch of the United States", 28 U.S.C. § 991(a), and directed the Commission to promulgate and distribute sentencing guidelines to be applied in the courts of the United States. 28 U.S.C. § 994(a)(1). The Commission promulgated such guidelines, which became effective November 1, 1987.

District courts throughout the nation have addressed the guidelines' constitutionality. The divergence of the holdings reached by those courts underscores the difficulty of the issues. According to the Solicitor General's brief in support of certiorari in United States v. Johnson, 682 F.Supp. 1033 (W.D.Mo.), cert. granted sub nom. United States v. Mistretta, ___ U.S. ___, 108 S.Ct. 2818, 100 L.Ed.2d 920 (1988), as of May 11, 1988, twenty-one district courts had upheld the guidelines' constitutionality, and twenty-nine had found the guidelines unconstitutional. The split between the courts is not as close in the reported opinions. As of August 5, 1988, the guidelines had been declared unconstitutional in fourteen published opinions¹ and upheld in only four²; a WESTLAW inquiry about the same time disclosed a total of thirty-two opinions striking down the guidelines as unconstitutional³ and sixteen

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opinions upholding the guidelines.⁴ Even those statistics are over-simplified, because the courts have ruled on varying grounds

The numerous courts that already have addressed the guidelines' constitutionality have ably set forth the provisions of the Act, the guidelines, and the provisions for membership of the Commission. Repetition of those provisions here would do no more than lengthen this opinion; accordingly, the court assumes familiarity with the Act and the guidelines.

II. DUE PROCESS

Mr. Weidner appears to raise three interrelated arguments in support of his claim that the guidelines deprive him of due process of law.

A.

Arguing from a framework of history and tradition, Mr. Weidner contends that he has a right to individualized sentencing in which the sentencing court may exercise discretion. He appears to cite Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), for the proposition that such a right exists, but Williams provides no such authority. Williams holds only that when a judge exercises such discretion, he or she may consider material presented in a presentence report.

In United States v. Ortega Lopez, 684 F.Supp. 1506, 1513 (C.D.Cal.1988) (en banc), the court found that the guidelines violate a due process right to individualized sentencing:

... the mechanical formulas and resulting narrow ranges of sentences prescribed by the Guidelines violate defendants' right to due process of law under the Fifth Amendment by divesting the Court of its traditional and fundamental function of exercising its discretion in imposing individualized sentences according to the facts of each case.

The Ortega Lopez court cited United States v. Barker, 771 F.2d 1362 (9th Cir. 1985), as authority for this holding. Barker, though, addressed a different issue: whether a district judge to whom sentencing discretion has been given may abdicate that discretion by imposing maximum sentences based on "the category of crime, rather than the culpability of each individual criminal ..." 771 F.2d at 1366. That a sentencing judge may not abdicate discretion does not mean that the constitution requires that sentencing judges be given discretion.

The guidelines do not give rise to the sort of mechanistic sentencing challenged in Barker. While the crime presents the starting point for determining a sentence under the guidelines, §§ 1B1.1(a), (b), the

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guidelines also require consideration of the victim, the defendant's role in the offense, the defendant's obstruction of justice or acceptance of responsibility, and criminal history. Although the court agrees with the Ortega Lopez court's observation, discussed below, that the guidelines restrict the sentencing court's ability to weigh factors relating to offender and offense, the court cannot agree that Barker supports the existence of a due process right to individualized sentencing

The Supreme Court has never recognized a due process right to individualized sentences in non-capital cases, and the Seventh Circuit has expressly held that no such right exists. United States v. McCoy, 770 F.2d 647, 649 (7th Cir.1985); United States v. Oxford, 735 F.2d 276, 278 (7th Cir.1984). In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), a capital case, the plurality opinion prefaced its discussion by stating, "We begin by recognizing that the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country." Id. at 602, 98 S.Ct. at 2963. "Although legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases ... this qualitative difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Id. at 603-604, 98 S.Ct. at 2964. "We recognize that, in noncapital cases, the established practice of individualized sentences rests not on constitutional commands, but on public policy enacted into statutes." Id. at 604-605, 98 S.Ct. at 2964-65. This case, of course, is not a capital case.

Accordingly, the court concludes that Mr. Weidner has no due process right to an individualized, discretionary sentence. As noted in United States v. Elliott, 684 F.Supp. 1535, 1539 (D.Colo.1988), which held the guidelines unconstitutional, "Congress could mandate specific penalties for particular crimes leaving the sentencing court with no discretion in determining the deprivation of liberty resulting from a conviction." See also United States v. Grayson, 438 U.S. 41, 45, 98 S.Ct. 2610, 2613, 57 L.Ed.2d 582 (1978) ("In the early days of the Republic ... the period of incarceration was generally prescribed with specificity by the legislature. Each crime had its defined punishment.").

B.

Mr. Weidner appears to raise an additional due process argument found in some of the cases addressing the guidelines' constitutionality. While Congress could require imposition of a specific sentence for a specific offense, such as four years for everyone convicted of mail fraud, the Sentencing Reform Act does not prescribe such specific sentences for specific offenses. The statutory penalty for mail fraud remains imprisonment from zero to five years. 18 U.S.C. § 1341.

As long as the prescribed sentence for an offense affords some sentencing discretion, due process concerns may remain. Some courts have found that the guidelines infringe that remaining due process right. In United States v. Frank, 682 F.Supp. 815, 818-819 (W.D.Pa.1988), the court found that the guidelines deprived defendants of the due process right to challenge the basis of a sentence "before a court which has the authority to weigh the evidence and determine an appropriate sentence." In United States v. Martinez-Ortega, 684 F.Supp. 634, 636 (D.Idaho 1988), the court held, "the negation of the sentencing judge's discretion violates the due process clause by preventing the defendant from having an opportunity to convince the sentencing judge that there are circumstances which override the point allocations of the Guidelines." Similarly, in United States v. Elliott, 684 F.Supp. at 1541, the court held, "it is a denial of due process in that the defendant has no opportunity to convince the sentencing judge that there are circumstances which override these point allocations."

If such a right exists, the Act and the guidelines preserve it. 18 U.S.C. § 3553(a)(4) requires sentencing courts to consider "the kinds of sentences and the sentencing range established for the applicable

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