United States v. Johnson , 682 F. Supp. 1033 ( 1988 )

MEMORANDUM AND ORDER

SACHS, District Judge.

The defendants in these cases are awaiting sentencing under the new Sentencing Guidelines. They challenge the constitutional status of the Sentencing Commission that produced the Guidelines. Briefs have been filed and arguments heard by seven judges of this district who are responsible for the processing of criminal cases.

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,¹ 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.

The unlawful delegation contention has been rejected in both the California decisions referred to below. Defendants’ counsel concedes that no district judge has yet announced acceptance of that claim. Substantive guidelines for punishment within statutory limits seem comparable in a practical sense to the guidelines of the Parole Commission, a body clearly located in the Executive Branch. While almost unique in that they have an impact on judicial conduct, the Sentencing Guidelines are otherwise similar to substantive rule-making, as in employee safety, environmental protection, trade regulation and the like.

A troubling contention is that Congress may now have delegated one of its “core” legislative obligations to the Sentencing Commission. It has been suggested that a theory of nondelegable legislative duties be created to “deny an executive agency the ability to promulgate regulations ... that affect the civil liberties of individual persons,” at least absent “clear legislative circumscription of the agency’s powers.” 1 Rotunda, Nowak & Young, Treatise on Constitutional Law (1986) 294 n. 4 (citing Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958), and scholarly commentary). See also the concurring opinion of Justice Brennan in United States v. Robel, 389 U.S. 258, 275, 88 S.Ct. 419, 430, 19 L.Ed.2d 508 (1968). Executive classification of controlled substances already determines judicial sentencing power in one important area of criminal law, however. Such delegation has been approved, although the authority must be carefully exercised. United States v. Spain, 825 F.2d 1426 (10th Cir.1987).

Perhaps defendants’ strongest unlawful delegation theory would be that only Congress may fix a penalty. This seems to be implied in United States v. Grimaud, 220 U.S. 506, 522-3, 31 S.Ct. 480, 485, 55 L.Ed.2d 563 (1911). It has been said that “the legislature cannot shift its task of fixing punishment either to the courts ... or apparently to administrative agencies, particularly in the absence of guidance or a clear delegation.” United States v. Batchelder, 581 F.2d 626, 631-2 (7th Cir.1978), reversed, 442 U.S. 114, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979). The Supreme Court opinion of Justice Marshall referred to the Seventh Circuit theory that “the [firearm] statutes might impermissibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties.” 442 U.S. at 125-6, 99 S.Ct. at 2205. The Court rejected the theory, at least in its application to prosecutorial discretion to choose between different statutes imposing different penalties. The Court said “Congress fulfilled its duty” when it supplied “the range of penalties that prosecutors and judges may seek and impose.” Id.

In the present context, it would seem that statutory determination of maximum sentences and fines likewise fulfills Congressional duty. A more serious question is presented when Congress requires no minimum punishment, but the Commission does. If the minimum punishment provisions of the Guidelines were considered essentially recommendations to the trial and appellate courts, the delegation argument would lose its power. In the alternative, it may be concluded that defendants are insisting on an over-refinement of what may be implied in Grimaud. Congress has made clear that disparate sentencing is the evil it wishes to alleviate. Like it or not, minimum as well as maximum limits of punishment must necessarily be formulated to achieve that legislative objective. See 28 U.S.C. § 994(b)(2) (limiting range to 25%).

While a different result could surely be reached by the Supreme Court on this troubling issue, the unlawful delegation argument of defendants goes well beyond current law and has not persuaded judges in other districts. I believe it would be unsound to impose that doctrine on parties in this district.

I am largely persuaded by the opinion of Judge Enright in United States v. Ruiz-Villanueva, 680 F.Supp. 1411, 1988 WL 16325, 1988 U.S.Dist. Lexis 1728 (S.D.Cal.). It is my conclusion, however, that the work of the Commission in carrying out the Congressional mandate can more conventionally be described as executive rather than judicial. Whether or not it qualifies as an independent agency the Commission should be judicially characterized as having Executive Branch status.

Voluntary service of Article III judges in the Executive Branch is sanctioned by the history of judicial conduct as early as the Washington and Adams administrations, is not forbidden by the constitutional prohibition on dual service (applicable to members of Congress), and has continued occasionally from the Truman administration to date. The service of Justice Jackson as prosecutor at Nuremberg and the White House service of then-district Judge Collet of this court were notably non-judicial in nature.² While such temporary departures from judicial service without resigning judicial office have been subject to criticism as a matter of public policy, I am not persuaded there is a constitutional impediment to such voluntary service. See In re President’s Commission on Organized Crime (Subpoena of Scarfo), 788 F.2d 370 (3d Cir.1986).

Because, as Judge Enright points out, Sentencing Commission service is intimately connected with judicial functions, there would seem to be less ground for criticism of dual service than in the Scarfo case. The contrary result, which has been reached by Judge Brewster in United States v. Arnold, 678 F.Supp. 1463, 1988 WL 11600, 1988 U.S.Dist. Lexis 1416 (S.D.Gal.), would deprive the Sentencing Commission of judicial insights in order to protect the independence of the judiciary. This would be a regrettable and unnecessary insistence on maintenance of functional purity.

Characterizing the Sentencing Commission as an Executive Branch agency avoids any problem that would otherwise exist relating to the Presidential power of removal.³

This opinion does not imply that I have no serious doubts about some parts of the Sentencing Guidelines and the legality of their anticipated operation. On the contrary, I believe it appropriate to flag in particular the anomaly of judicial use of a preponderance of evidence standard in making findings that enhance punishment, as seems generally to be expected although not directed by the Guidelines. Even though such a standard has been permitted for the Parole Commission (Fatico v. Kerr, 569 F.Supp. 448, 453 (W.D.Wis.1983)), there are strong policy arguments and possibly constitutional arguments against judicial enhancement of punishment without an admission of misconduct or clear and convincing evidence of alleged misconduct that goes beyond the minimum required by the indictment. United States v. Lee, 818 F.2d 1052, 1058 (2d Cir.1987) (Oakes, J. concurring); United States v. Fatico, 458 F.Supp. 388, 408-412 (E.D.N.Y.1978). I have previously used the Fatico standard of proof for contested facts in sentencing, without encountering the problems foreseen by the Lee majority opinion. See United States v. Cox, 556 F.Supp. 812, 814 (W.D.Mo.1983). Absent appellate guidance to the contrary, I expect to continue this practice.

Sentencing will proceed under the Guidelines. SO ORDERED.

1 . Judges Elmo B. Hunter, D. Brook Bartlett and Dean Whipple. The judges do not necessarily concur in the observations made herein. Chief Judge Wright expresses disagreement with the result and expects to file a dissenting opinion on April 5, 1988.

2 . Judge Collet served on the Railway Labor Board in 1945, as administrator of the Office of Economic Stabilization in 1945-6, and thereafter as a presidential consultant. History of the Eighth Circuit (Judicial Conference Bicentennial Committee, 1977).

3 . Even if Judge Brewster's arguments were well taken, the Guidelines would probably survive, subject to reconsideration by a restructured Commission. Buckley v. Valeo, 424 U.S. 1, 142, 96 S.Ct. 612, 693, 46 L.Ed.2d 659 (1976).