US v. Whyte, Crim. A. No. 88-0047.

• Court: United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
• Writing for the Court: John R. Steer, Donald R. Purdy, Jr., U.S. Sentencing Com'n, Washington, D.C
• Citation: 694 F. Supp. 1194
• Parties: UNITED STATES of America v. Easton WHYTE, a/k/a "Larry Whyte".
• Decision Date: 09 September 1988
• Docket Number: Crim. A. No. 88-0047.

694 F. Supp. 1194

UNITED STATES of America
v.
Easton WHYTE, a/k/a "Larry Whyte".

Crim. A. No. 88-0047.

United States District Court, E.D. Pennsylvania.

September 9, 1988.

Paul Sarmousakis, Asst. U.S. Atty., for U.S.

Steven A. Morley, Philadelphia, Pa., for Whyte.

John R. Steer, Donald R. Purdy, Jr., U.S. Sentencing Com'n, Washington, D.C.

MEMORANDUM AND ORDER

KATZ, District Judge.

This case involves the constitutionality of the Sentencing Reform Act and its guidelines.¹

694 F. Supp. 1195

The defendant, Easton Whyte, was convicted after a jury trial on a three count indictment of violations of 21 U.S.C. § 841 (possession with intent to distribute cocaine base), 18 U.S.C. § 924(c) (using and carrying a firearm during and in relation to a drug trafficking crime), and 18 U.S.C. § 922(g)(1) (possession of a firearm by a previously convicted person).

The defendant argues that the Sentencing Reform Act of 1984 (SRA), Pub.L. No. 98-473, tit. II, ch. II, 98 Stat. 1987 (codified as amended at 18 U.S.C. §§ 3551-3742 and 28 U.S.C. §§ 991-998) is unconstitutional, and that the guidelines promulgated thereunder are therefore invalid and do not bind this court.² The Sentencing Commission argues that the Act and the guidelines are constitutional. The Commission takes the position that this court should rule on the constitutionality of the guidelines. The government contends, however, that this court should refrain at this time from deciding the constitutionality of the guidelines. If this court does, however, determine the guidelines to be unconstitutional, the government urges that I nevertheless sentence Mr. Whyte under those guidelines.

The Sentencing Reform Act, motivated by the proper purpose of enhancing uniformity of sentences, created the Sentencing Commission. The Commission is charged with the function of "establishing sentencing policies and practices for the federal criminal justice system...." 28 U.S.C. § 991(b). In furtherance of this goal the Commission is directed to "promulgate and distribute to all courts of the United States and to the United States Probation System—(1) guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal case, and ... (2) general policy statements regarding application of the guidelines." 28 U.S.C. § 994(a). The Commission, located by statute in the judicial branch, is composed of seven voting members and one nonvoting member, appointed by the President, with the advice and consent of the Senate. 28 U.S.C. § 991(a). Of the seven voting members, three must be federal judges selected from a list of six judges recommended by the Judicial Conference of the United States. A member of the Commission may be removed by the President "only for neglect of duty or malfeasance in office or for other good cause shown." 28 U.S.C. § 991(a).

It is this committee, located within the judicial branch, which offends the constitutional notion of separation of powers. Gubiensio-Ortiz v. Kanahele, 857 F.2d 1245, (9th Cir.1988); United States v. Brown, 690 F.Supp. 1423, (E.D.Pa.1988); United States v. Brodie, 686 F.Supp. 941 (D.D.C.1988). To argue, as the Sentencing Commission does, that the placement of the Commission in the judicial branch is merely symbolic or a "labeling error" is to trivialize the core doctrine of separation of powers. The guidelines must fall because...