Unpublished Disposition, 923 F.2d 863 (9th Cir. 1989)

MEMORANDUM^*** 

Appellant-defendant Russell C. Ellis appeals the district court's sentencing order on the ground that the Sentencing Guidelines, as written and applied, are unconstitutional. Specifically, he alleges that the Sentencing Guidelines violate due process by stripping judges of their ability to individualize sentences and by allowing sentencing facts to be proven by the preponderance of the evidence standard. Since all of his arguments have been previously considered and rejected by this Court, we affirm.

On October 31, 1989, pursuant to a written plea agreement, Ellis pled guilty to violating 21 U.S.C. § 841(a) (1), cultivation of more than one hundred marijuana plants. The government informed the district court that Ellis had two prior drug convictions. The court sentenced him to ten years imprisonment followed by eight years of supervised release. No fine was imposed and a second charge was dismissed.

Prior to sentencing, Ellis was informed that under the Federal Sentencing Guidelines the possible sentence range was 33-41 months, but the statutory minimum under 21 U.S.C. § 841 was ten years imprisonment.¹  The district court's sentencing order relied upon Guideline 5G1.1 Commentary²  and our holding in United States v. Sharp, 883 F.2d 829 (9th Cir. 1989), that a judge may not sentence below the minimum sentence mandated by 21 U.S.C. § 841(b) absent a motion by the government for downward departure based upon substantial assistance. The district judge found that "the Government has not moved for a downward departure, therefore, this Court is compelled to impose the statutory minimum sentence." In this appeal, Ellis argues that his sentence is unconstitutional.

We review the legality of a criminal sentence de novo. United States v. Cervantes-Lucatero, 889 F.2d 916, 917 (9th Cir. 1989). Whether the Sentencing Guidelines, facially and as applied, violate due process and the separation of powers doctrine is a question of law and is reviewed de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824 (1984).

Ellis contends that the Sentencing Guidelines violate substantive due process by stripping a judge of the ability to weigh all the relevant evidence when determining an individual's sentence. In United States v. Brady, 895 F.2d 538 (9th Cir. 1990), this court considered and rejected a similar challenge to the Sentencing Guidelines. Like Ellis, the defendants in Brady alleged that the Guidelines deprived them of individualized sentences by restricting the sentencing judge's ability to weigh and balance mitigating factors. We concluded that the core of the due process right was not in the weight given to each sentencing factor; " [r]ather, consideration of those factors lies at the heart of the right to individualized sentencing." Id. at 541. Therefore, as long as a court is not limited in its consideration of mitigating factors, the Guidelines may permissibly restrict the weight given to each of those factors.

Ellis also argues that the Guidelines were unconstitutionally applied to his case because his sentence was based solely on his two prior convictions without consideration of other mitigating factors. This contention is without merit. Under 21 U.S.C. § 841, the judge had discretion to assign Ellis a sentence anywhere from ten years to life imprisonment. The judge chose the minimum sentence, clearly considering all of the factors before him to Ellis' advantage.

Ellis' second facial challenge to the Sentencing Guidelines is that they unconstitutionally require that downward departure for substantial assistance be made only upon motion of the prosecutor. Guideline 5K1.1; 18 U.S.C. § 3553(e). We held that this requirement does not violate the separation of powers doctrine in United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied, 110 S. Ct. 847 (1990). Ayarza argued that the rule in Guideline 5K1.1 "violate [d] the separation of powers doctrine by delegating to prosecutors the unbridled discretion to decide who is entitled to a sentencing reduction." Ayarza, 874 F.2d at 653 (footnote omitted). We dismissed this argument, holding that "the sentencing process is not inherently judicial and that, even if it were, the government's authority to recommend a reduced sentence was not impermissibly obtrusive." Id.

Ellis also contends that Guideline 5K1.1 and the requirement that the statutory mandatory minimum sentence control when it is greater than the Guideline sentence conflict with 21 U.S.C. § 3661, which requires that there be " [n]o limitation" on the information a judge may consider in determining an appropriate sentence. We have previously rejected similar arguments. In United States v. Kidder, 869 F.2d 1328 (9th Cir. 1989), this court held that statutory minimum sentences were valid as long as "in choosing a sentence within the statutory limits, a trial judge ... make [s] an individualized assessment of the defendant's culpability." Id. at 1334-35 (emphasis in original).

We have held that the Guidelines do not unconstitutionally limit the sentencing judge's discretion; rather, they only limit the weight which the judge may place on each of the factors. Brady, 895 F.2d at 538 (9th Cir. 1990). In addition, we have affirmed that Congress may restrict the decision regarding substantial assistance to those who are in the best position to realize the value of the defendant's assistance, i.e., the prosecutor. Ayarza, 874 F.2d at 647.

Ellis' final argument is that the Guidelines violate due process by allowing consideration of sentencing factors proven under the preponderance of the evidence standard. He argues that the Guidelines thus disobey the rule of In re Winship, 397 U.S. 358 (1970), that all elements of a crime must be proven beyond a reasonable doubt. However, in United States v. Wilson, 900 F.2d 1350 (9th Cir. 1990), we held that no due process violation occurred when sentencing facts are proven by the preponderance of the evidence standard. We based our decision on the Supreme Court's approval of a lower standard of proof at the sentencing phase of a trial. See McMillan v. Pennsylvania, 477 U.S. 79 (1984). Ellis' attempts to distinguish McMillan are unsuccessful. See also United States v. Rafferty, 911 F.2d 227 (9th Cir. 1990) (McMillan forecloses any due process challenge to the lower level of proof used by the Sentencing Guidelines).

Because all of Ellis' constitutional challenges to the Sentencing Guidelines have been previously considered and rejected by this Court, the district court's sentencing order is AFFIRMED.