cited herein at page 7 upholding Guidelines). But when Congress
added the caveat of § 3553(e), it opened the door to a
challenge based on substantive due process. It is not that a
mandatory minimum sentence is offensive as a matter of law, nor
that the United States Attorney's profile itself offends our
collective sense of justice. The problem presented here is more
basic, more fundamentally troubling. A scheme of ordered
liberty is diminished when one party's participation in a fair,
adversarial process is limited, as the defendant is limited by
§ 3553(e) and § 5K1.1.
This Court has always believed that cooperation with the
government is something to be encouraged, and drug enforcement
is one area where that is doubly true. The Court does not
intend that this ruling interfere with the legitimate
decision-making prerogative of the executive branch. But where
a statute like 18 U.S.C. § 3553(e) or a regulation like § 5K1.1
withholds from the defendant the right to present to the court
an issue so intimately related to the appropriate length of
sentence, then such a statute or regulation must be struck down
as fundamentally unfair.
The final arbiter of the exercise of prerogatives of this
nature must rest with the Court. Either side must be able at
least to raise the possibility of a downward departure for
PROCEDURAL DUE PROCESS
A longer sentence in this case would have deprived Defendant
of a significant liberty interest; a sentence in conformance
with the Guidelines or with the statute would have been at
least nine months longer and a sentence at the mandatory
minimum would have been 12 months longer than the one actually
imposed. Certainly that is a significant deprivation of
liberty. Furthermore, the deprivation would have been the
result of a procedure which is inherently unfair because it is
tipped too far in favor of the Government.
A defendant has due process rights during the sentencing
stage. United States v. Satterfield, 743 F.2d 827 (11th Cir.
1984); United States v. Florence, 741 F.2d 1066 (8th Cir.
1984); United States v. Pugliese, 805 F.2d 1117, 1122 (2nd Cir.
1986); United States v. Johnson, 607 F. Supp. 258 (N.D. Ill.
1985). It is true that due process rights at sentencing may be
somewhat more limited than during trial, United States v.
Palma, 760 F.2d 475 (3rd Cir. 1985), Satterfield, 743 F.2d 827.
Generally a sentencing proceeding comports with due process
requirements so long as the proceeding is not fundamentally
unfair. Armstrong v. Dugger, 833 F.2d 1430 (11th Cir. 1987).
The Supreme Court has held that four general factors must be
evaluated to determine what process is due at sentencing.
(1) the nature of the individual interest;
(2) the risk of error inherent in present methods;
(3) the value of additional safeguards; and
(4) the Government's interest, including fiscal burdens, of
any additional safeguards.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976).
Courts have found that a fair sentencing proceeding consists
at least of:
(1) imposition of a sentence based on accurate and true
information and not on false, misleading information or on
groundless inferences or unfounded assumptions;
Satterfield, 743 F.2d at 840;
(2) an opportunity to question the proceedings leading to
imposition of sentence; Gardner v. Florida, 430 U.S. 349, 358,
97 S.Ct. 1197, 51 L.Ed.2d 393 (1977);
(3) an opportunity to contest the facts presented or relied
upon by the government, Townsend v. Burke, 334 U.S. 736, 741,
68 S.Ct. 1252, 92 L.Ed. 1690 (1948); Satterfield, 743 F.2d at
(4) adequate notice, Shelton v. United States, 497 F.2d 156,
159 (5th Cir. 1974); Satterfield, 743 F.2d at 830.
A number of Circuit Courts have considered whether the
Guidelines as a whole violate due process and have agreed
unanimously that they do not. United States v. Frank,
864 F.2d 992 (3rd Cir. 1988), cert. denied, ___ U.S. ___, 109 S.Ct.
L.Ed.2d 998 (1989); United States v. White, 869 F.2d 822 (5th
Cir.) (per curiam), cert. denied, ___ U.S. ___, 109 S.Ct. 3172,
104 L.Ed.2d 1033 (1989); United States v. Seluk, 873 F.2d 15
(1st Cir. 1989); United States v. Vizcaino, 870 F.2d 52 (2nd
Cir. 1989); United States v. Bolding, 876 F.2d 21 (4th Cir.
1989); United States v. Allen, 873 F.2d 963 (6th Cir. 1989);
United States v. Pinto, 875 F.2d 143 (7th Cir. 1989); United
States v. Brittman, 872 F.2d 827 (8th Cir. 1989); United States
v. Thomas, 884 F.2d 540 (10th Cir. 1989); United States v.
Harris, 876 F.2d 1502 (11th Cir. 1989).
This Court has studied the above cases and finds that the
rationales given for upholding the Guidelines as a whole do not
translate when applied to the specific provisions at issue
here. In fact, in some instances, the discussions support this
Court's declaration of unconstitutionality.*fn2 At any rate,
the holdings in the cases cited above do not preclude a finding
that § 5K1.1 violates due process.
In most of the above-cited cases discussing the Guidelines
generally, the courts held that the Guidelines did not
unconstitutionally limit or delegate discretion of the court.
This holding has been applied (without much analysis) to
challenges brought against § 5K1.1 specifically.
For example, in United States v. Huerta, 878 F.2d 89 (2nd
Cir. 1989) the court stated that a due process challenge to §
3553(e) and § 5K1.1 "rests on the faulty premise that judicial
sentencing discretion cannot be circumscribed." Id. at 94.
Of course such a premise would be faulty, but that is not the
basis for the due process objections to these provisions. If
Congress chooses to limit the court's discretion in sentencing
by imposing a mandatory minimum sentence or by limiting the
circumstances in which the sentence can drop below a minimum
range, no overwhelming constitutional concerns are implicated.
However, when Congress, either directly by statute or
indirectly through the Commission's Guidelines, gives the power
to initiate the exercise of that discretion to one party and
only one party, then something more significant than just a
circumscription of the court's discretion has occurred.
In the case of United States v. Musser, 856 F.2d 1484 (11th
Cir. 1988), the Eleventh Circuit held that the "substantial
assistance" provision of 18 U.S.C. § 3553(e) was not an
unconstitutional delegation on the theory that it delegated to
prosecutors the "sole discretion to decide who is entitled to a
sentence reduction." Id. at 1487. See also, United States v.
Ayarza, 874 F.2d 647 (9th Cir. 1989).
The entire portion of the Musser decision dealing with this
issue is quoted below:
Appellants also argue that the "substantial
assistance" provision is unconstitutional because
it delegates to prosecutors unbridled discretion
to decide who is entitled to a sentence reduction.
Initially, we observe that the only authority
"delegated" by the rule is the authority to move
the district court for a reduction of sentence in
cases in which the defendant has rendered
substantial assistance. The authority to actually
reduce a sentence remains vested in the district
court, a delegation which Musser does not
challenge. Moreover, although the term
"substantial assistance" is not defined in the
statute, the discretion of prosecutors is limited
by considering the "substantial assistance"
provision within the overall context of the
Anti-Drug Abuse Act itself. Cf. United States v.
Gordon, 580 F.2d 827 (5th Cir. 1978), cert. denied,
439 U.S. 1051, 99 S.Ct. 731, 58 L.Ed.2d 711 (1978).
Finally, appellants' argument ignores Congress'
plenary authority in all areas in which it has
substantive legislative jurisdiction as long as
that authority does not offend some other
constitutional provision. Buckley v. Valeo,
424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976).
Appellants certainly have no constitutional right
to the availability of the "substantial assistance"
provision, and hence no grounds upon which to
challenge Congress' manner of enacting it.
Appellants' argument is without merit.