Appeal from a sentence imposed by the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, after appellant pleaded guilty to possession of cocaine with intent to distribute it. Vizcaino and amicus, the Legal Aid Society, argue that the Sentencing Reform Act of 1984 and the Sentencing Guidelines promulgated thereunder violate due process by precluding individualized sentencing, denying the district court discretion to consider and accord appropriate weight to all of the factors relevant to sentencing, denying the defendant his right to an articulated exercise of discretion, and vesting excessive control over sentencing in the executive branch of government. Judgment affirmed.
Oakes, Chief Judge, Newman, Circuit Judge, and Leval, District Judge.*fn*
Jorge Vizcaino appeals a sentence imposed by the United States District Court for the Eastern District of New York, Charles P. Sifton, Judge, applying the Sentencing Guidelines promulgated under the Sentencing Reform Act of 1984 ("the Act"), Pub. L. No. 98-473, 98 Stat. 2017 (codified as amended in scattered sections of titles 18 & 28 U.S.C.A.). Vizcaino, mounting what is essentially a facial challenge to the underlying statute, argues that sentencing under the Guidelines unconstitutionally denied him the due process guaranteed by the Fifth Amendment.*fn1 Vizcaino, who does not appeal his conviction, pleaded guilty to possession of cocaine with intent to distribute it in violation of 21 U.S.C. § 841(a)(1) (1982). Judge Sifton, who sentenced Vizcaino to fifty-one months in jail, a three-year period of supervised release, and a special assessment of $50, rejected Vizcaino's constitutional arguments in open court.
Vizcaino was sentenced in June of 1988, and his brief was filed October 25, 1988. This appeal was held pending the Supreme Court's consideration of the challenge to the Act on separation of powers grounds. Vizcaino originally argued, in addition to the due process challenges we consider today, that the Act establishing the Guidelines violated separation of powers principles and Article III and that the Sentencing Reform Act unconstitutionally delegated an inherently legislative function to the judicial branch. The Supreme Court rejected those arguments in Mistretta v. United States, 488 U.S. 361, 57 U.S.L.W. 4102, 102 L. Ed. 2d 714, 109 S. Ct. 647 (U.S. Jan. 18, 1989). After Mistretta was announced, Vizcaino's counsel waived oral argument, saying that his remaining arguments were "mooted." Amicus, the Federal Defender Services Unit of the Legal Aid Society, however, then sought and received permission to submit a brief arguing the due process challenges. Vizcaino's challenges to the Guidelines do not depend on the facts of his case or the way the district court applied the Guidelines to his sentence.
Reading the briefs of appellant and amicus together, we find that there are two types of due process challenges before us, although he first is restated in several different ways. Basically, the first argument is that the statute (and Guidelines) unconstitutionally prevent the judge from making discretionary assessment of the individual defendant at sentencing; the second argument is that the Guidelines, which were originally developed and are continuously revised by commissioners who are subject to presidential appointment and removal, are the product of a scheme that vests excessive sentencing authority in the prosecutorial branch of the government. We affirm the district court's rejection of these contentions.
I. Individualized sentencing
A. The restriction of discretion an the denial of individualized sentencing. Appellant argues, and some district courts have held, that there is a substantive due process right to discretionary individualized sentencing. See, e.g., United States v. Alafriz, 690 F. Supp. 1303, 1309-10 (S.D.N.Y. 1988). We find, however, that no such due process right exists.
Because appellant argues that the Act unconstitutionally denies him individualized sentencing, it is appropriate to determine at the outset whether the Guidelines, in fact, restrict the district court's discretion in sentencing. While the statute instructs a sentencing court to consider a broad range of factors, including the Guidelines, 18 U.S.C. § 3553(A) (Supp. IV 1986), the Guidelines tell how the district court should treat many of the potential factors that could be taken into consideration. One of the purposes of the Sentencing Commission is to achieve a certain amount of uniformity, to
provide certainty and fairness in meeting the purposes of sentencing, avoiding 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 when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.
28 U.S.C. § 991(b)(1)(B) (Supp. IV 1986). The statutory provision for departure from the Guidelines, which was broadened in 1987, provides:
Application of guidelines in imposing a sentence. -- The court shall impose a sentence of the kind, and within the range, referred to unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described. In determining whether a circumstance was adequately taken into consideration, the court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission.
18 U.S.C.A. § 3553(b) (West Supp. 1988). The 1987 amendment inserted the words "of a kind, or to a degree," see Pub. L. No. 100-182, § 3(1), 101 Stat. 1266, 1266 (1987), thereby potentially authorizing a sentencing court to vary the weight accorded a factor named in the Guidelines. See generally United States Sentencing Commission Guidelines Manual ("Manual") § 5K2.0 (policy statement on grounds for departure); id. §§ 5K2.1 et seq. (concerning particular possible bases for departure such as death and physical injury to victim); 18 U.S.C. § 3553(c)(2) (Supp. IV 1986) (court must articulate "specific reason" for departure from Guidelines). Our court has already, under the "reasonableness" standard of review, see 18 U.S.C.A. § 3742 (West Supp. 1988), approved departures from the Guidelines. See United States v. Guerrero, 863 F.2d 245, 250-51 (2d Cir. 1988); United States v. Correa-Vargas, 860 F.2d 35, 40 (2d Cir. 1988).
Furthermore, the introduction to the Guidelines Manual authorizes consideration of departure "when a court finds an atypical case, one to which a particular guidelines linguistically applies but where ...