United States v. Michael James Brady, United States of America v. Andre Michelle Lowe

These two cases raise the issue of whether the Sentencing Guidelines, facially or as applied, violate the defendants’ fifth amendment right to substantive and procedural due process by limiting the sentencing discretion of district courts and infringing defendants’ rights to individualized sentences. We agree with the ten circuits which have previously decided this issue and find that the Guidelines do not violate due process on these grounds.

FACTS AND PROCEDURAL HISTORY

Brady

Michael James Brady (Brady) was indicted October 18, 1988, on three counts of robbery of a bank or savings and loan association in violation of 18 U.S.C. § 2113 (a) (1982). Brady pled guilty to the third count and on February 13, 1989, the district court reluctantly sentenced him under the Guidelines to 24 months in custody followed by four years of supervised release. The court refused to depart from the Guidelines based on Brady’s family standing and the aberrational nature of his criminal behavior, believing that these were not appropriate grounds for departure.

Lowe

Andre Michelle Lowe (Lowe) was indicted July 29, 1988, on one count of assaulting a federal employee in violation of 18 U.S.C. § 111…

concurring specially:

I concur in the result. I do not agree that the Guidelines “potentially pose fewer due process concerns than the pre-Guide-lines sentencing practice.” Nor do I agree that the risk of deprivation of a defendant’s liberty interest is arguably less under the Guidelines than under traditional sentencing procedures. In fact, I see little to commend the Guidelines in any respect. The strict limitations they impose on the traditional sentencing discretion of district judges run contrary to the basic principle which should govern modern sentencing— individualized consideration of the offender, the crime, and all of the relevant facts and circumstances relating to both. United States v. Barker, 771 F.2d 1362, 1365 (9th Cir.1985). Nevertheless, under our Constitution, it is Congress which has the authority to determine fundamental sentencing policy. When in doing so it acts within the limitations imposed by that document, we are required to uphold its action. Here, I agree with the majority that the Guidelines do not offend the due process clause on its face or as applied. Accordingly, I concur that we must affirm the district court.

895 F.2d 538 58 USLW 2483 UNITED STATES of America, Plaintiff-Appellee, v. Michael James BRADY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Andre Michelle LOWE, Defendant-Appellant. Nos. 89-50079, 89-50128. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 7, 1989. Decided Jan. 30, 1990. Carlton F. Gunn and Alan T. Launspach, Deputy Federal Public Defenders, Los Angeles, Cal., for defendants-appellants. Jeffrey C. Eglash, Asst. U.S. Atty., Los Angeles, Cal., and Andrew Levchuk, U.S. Dept. of Justice, Washington, D.C., for plaintiff-appellee. Before BROWNING, BOOCHEVER and REINHARDT, Circuit Judges. BOOCHEVER, Circuit Judge: 1 These two cases raise the issue of whether the Sentencing Guidelines, facially or as applied, violate the defendants' fifth amendment right to substantive and procedural due process by limiting the sentencing discretion of district courts and infringing defendants' rights to individualized sentences. We agree with the ten circuits which have previously decided this issue and find that the Guidelines do not violate due process on these grounds. FACTS AND PROCEDURAL HISTORY Brady 2 Michael James Brady (Brady) was…