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UNITED STATES v. HALLEMEIER

June 15, 1989

UNITED STATES OF AMERICA
v.
CHRIS HALLEMEIER and RICHARD DOWNS


Paul E. Plunkett, United States District Judge.


The opinion of the court was delivered by: PLUNKETT

PAUL E. PLUNKETT, UNITED STATES DISTRICT JUDGE

 Defendants Chris Hallemeier and Richard Downs both pled guilty to conspiracy to possess and bass counterfeit money, and passing counterfeit money. Defendants now seek a declaration that the Federal Sentencing Guidelines, 28 U.S.C. § 991 et seq., violate the due process clause of the Fifth Amendment, and are also invalid as inconsistent with the enabling legislation. *fn1" For the reasons set forth below, the court rejects these arguments, and denies Defendants' motion.

 Due Process

 Defendants first contend that the Guidelines violate due process because defendants have a constitutional right to individualized sentences. The Seventh Circuit categorically rejected such an argument in United States v. Pinto, 875 F.2d 143 (7th Cir. 1989), and we of course follow that decision. *fn2"

 Defendants' second argument is that the Guidelines were derived in an irrational manner, and that imposition of sentence based on them is thus irrational and in violation of due process. This court has previously considered and rejected this argument, and refers the parties to our earlier opinion. See United States v. Walton, 88 CR 877 (N.D.Ill. May 12, 1989), at 3-4 (attached).

 Defendants' third and final due process claim is that the Guidelines violate procedural due process by denying defendants the right to a meaningful hearing. This argument, too, has previously been considered and rejected by this court. See Walton at 2-3.

 Enabling Legislation

 Defendants' argument that the Guidelines are invalid because they are inconsistent with the enabling legislation has not previously been considered by either the Seventh Circuit or this court, and thus shall receive more discussion. The Guidelines are not legislation, for they were not passed by both houses of Congress and presented to the President for his signature. United States v. Mendez, 691 F. Supp. 656, 662 (S.D.N.Y. 1988) (citing INS v. Chadha, 462 U.S. 919, 946-51, 77 L. Ed. 2d 317, 103 S. Ct. 2764 (1983). Thus,

 
if the Guidelines are not consistent with the legislation that enabled the [Sentencing] Commission to promulgate them, they are invalid to the extent of the inconsistency because the power of the Commission, like the power of any other administrative board, was only "to adopt regulations to carry into effect the will of Congress as expressed by the statute. A regulation which does not do this, but operates to create a rule out of harmony with the statute, is a mere nullity."

 Mendez, supra, (quoting Manhattan General Equipment Co. v. Commissioner, 297 U.S. 129, 134, 80 L. Ed. 528, 56 S. Ct. 397 (1936)).

 Defendants claim that the Guidelines are inconsistent with the enabling legislation because they restrict the availability of probation to a degree not intended by Congress. In support of this argument they cite four different sections of the enabling legislation, and contrast them to the provisions of the Guidelines. Defendants cite no cases in support of their arguments, presumably because, at least according to this court's research, every court which has thus far considered these arguments has rejected them. See cases cited infra.

 At the outset, we note that the Guidelines became effective only with the consent of Congress. See Comprehensive Crime Control Act of 1984, Pub.L.No. 98-473, Section 235(a)(1)(B)(ii), 98 Stat. 2031-32; 28 U.S.C. § 994(p). Congress had the opportunity to amend the Guidelines' treatment of probation, but failed to do so. In light of this fact, it is difficult for the court to conclude that the Guidelines contravened Congressional intent in restricting the availability of probation. See United States v. Myers, 687 F. Supp. 1403, 1420 (N.D.Cal. ...


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