Jose Gubiensio-Ortiz v. Al Kanahele, Warden, Metropolitan Correctional Center, San Diego, California, United States of America v. Raul Chavez-Sanchez

We consider the constitutionality of 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 ).

Facts

A. In 1984, Congress consummated a decade-long effort to revolutionize federal sentencing law by creating the United States Sentencing Commission as “an independent commission in the judicial branch of the United States.” 28 U.S.C. § 991 (a) (Supp. IY 1986). Congress charged the Commission with eliminating 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.” 28 U.S.C. *1247 § 991 (b)(1)(B) (Supp. IV 1986). In an effort to establish this more determinate system of sentencing, the Act introduces three major changes from prior law: (1) It authorizes the Commission to promulgate “guidelines ... for use of a sentencing court in determining the sentence to be imposed in a criminal case,” along with policy statements to facilitate implementation of the guidelines, 28 U.S.C. § 994 (a) (Supp. IV 1986); (2) it prospectively…

dissenting.

I dissent because I believe that the Sentencing Guidelines withstand all constitutional challenges. I also believe that if the Guidelines are found unconstitutional, the “good time” credit provisions are severable from the infirm sections of the Sentencing Reform Act. 1

This is a case about power: the power and authority the Constitution grants to our three branches of government. I agree that any question of the Sentencing Commission’s placement in the judicial branch must recognize function over form. But a functional approach to a separation of powers inquiry demands a determination whether an allocation of authority to one branch compromises the constitutionally mandated role of all the branches. The majority is content, I believe, with finding that the participation of three article III judges on the Commission compromises their status as federal judges, and thus renders the Commission’s work infirm. For reasons explained below, I reject this conclusion. More importantly, I believe that it answers the wrong question in the wrong order. While the majority exalts function, they have forgotten form, that is, the essential structure of a separation of powers…

857 F.2d 1245 57 USLW 2136 Jose GUBIENSIO-ORTIZ, Petitioner-Appellant, v. Al KANAHELE, Warden, Metropolitan Correctional Center, San Diego, California, Respondent-Appellee. UNITED STATES of America, Plaintiff-Appellant, v. Raul CHAVEZ-SANCHEZ, Defendant-Appellee. Nos. 88-5848, 88-5109. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 13, 1988. Decided Aug. 23, 1988. As Amended Sept. 15, 1988. Appeal from the United States District Court for the Southern District of California. Alan B. Morrison, Public Citizen Litigation Group, Washington, D.C., and Judy Clarke, Federal Defenders of San Diego, Inc., San Diego, Cal., for the petitioner-appellant in No. 88-5848 and the defendant-appellee in No. 88-5109. Douglas Letter and Gregory C. Sisk, U.S. Dept. of Justice, Washington, D.C., Roger W. Haines, Jr., Asst. U.S. Atty., San Diego, Cal., for the respondent-appellee in No. 88-5848 and the plaintiff-appellant in No. 88-5109. Paul M. Bator, Mayer, Brown & Platt, Chicago, Ill., and John R. Steer, Gen. Counsel, U.S. Sentencing Com'n, Washington, D.C., for the U.S. Sentencing Com'n as amicus curiae. Before WIGGINS, BRUNETTI and KOZINSKI, Circuit Judges. KOZINSKI,…