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August 29, 1988


Harold H. Greene, United States District Judge.

The opinion of the court was delivered by: GREENE

These cases all involve what may be called the second round of inquiry into the recently-enacted sentencing law and the guidelines issued pursuant thereto by the federal sentencing commission. An analysis of the facts and the law applicable to these cases indicates that the constitutional infirmities identified in the decisions handed down earlier this year by this and other courts do not by any means exhaust the list of problems presented by that statute and those guidelines. In fact, while most of the difficulties dealt with in the earlier decisions could probably be cured by a direct congressional enactment of the guidelines presently resting only on the authority of the commission, those being considered below appear to be far more intractable for they may be inherent in the fixed sentencing scheme established by the statute.


 On May 19, 1988, in United States v. Brodie, 686 F. Supp. 941 (D.D.C. 1988), this Court declared unconstitutional the newly-enacted federal sentencing statute, *fn1" as a large number of other district courts had done and were to do all over the nation. *fn2" At the same time, in accord with several other tribunals (though not all), the Court stayed the effect of its decision because of the deference it felt it owed to a congressional enactment. However, it has now become apparent, on the basis of actual experience, that the constitutional problems discussed in Brodie describe only the most broadly conceptual legal difficulties presented by the statute and the sentencing commission's guidelines. By contrast, the defects discussed herein go to the heart of the actual sentencing function. The Court has concluded, based on real life experience with the new scheme that, absent a Supreme Court decision upholding them, *fn3" it would be imprudent to continue to apply the guidelines because to do so would require the Court to take actions at odds with law, fairness, and the public interest.

 The difficulties with the guidelines are especially pronounced in the area of guilty pleas and plea bargaining -- activities which account for the bulk of the dispositions of criminal cases in the federal courts *fn4" as well as in the state courts. Unless the political branches of government are prepared to authorize the appointment of very large numbers of additional judges, prosecuting attorneys, and supporting personnel, as well as the relatively vast expenditure of funds that such measures would entail, plea bargaining will continue to occupy a prominent place in the achievement of criminal dispositions. *fn5"

 As explained below, the new sentencing statute and the guidelines are riddled with conceptual and practical dilemmas in the plea bargaining area. These dilemmas, in turn, make it difficult, if not impossible, for courts to apply the guidelines in many situations, unless they are to affront directly the aim of sentencing uniformity -- the central purpose of the new law -- or to trench deeply on safeguards for fairness explicitly provided for or implicit in the due process clause of the Constitution and the mandate of Rule 11, Fed. R. Crim. P. For these reasons, the Court has decided in the exercise of its discretion *fn6" that it should not continue to apply the new sentencing statute at this time. *fn7" Accordingly, it will now lift the stay of the enforcement of its May 19, 1988 decision which it issued sua sponte on that date.

 Several cases presently before the Court are directly affected by the infirmities and pitfalls inherent in the statute and the guidelines, and they illustrate the problems that broadly and detrimentally affect sentencing decisions at large. More specifically, the issues before the Court in the Bethancurt case discussed in Part II, infra, and those in the Goff-Robinson-Lugg cases discussed in Parts III and IV, infra, raise various aspects of the question whether the guidelines issued by the sentencing commission are consistent with continued large-scale plea bargaining and with fundamental fairness.


 Defendant Alcides del Rosario Bethancurt was indicted by a grand jury on May 19, 1988, of a violation of 18 U.S.C. § 1546 which renders illegal certain fraudulent activities, including forgery and misuse, with regard to alien registration cards, also known as "green cards." The maximum penalty provided by law for violation of this statute is imprisonment for a period of five years, or a fine of $ 250,000, or both, and a violation of the statute is a felony. Thereafter, on August 15, 1988, the United States Attorney filed an information to serve as a substitute for the earlier indictment, charging defendant with a violation of 18 U.S.C. § 1028(a)(4) which renders illegal various frauds in connection with identification documents. *fn8" The maximum penalty provided by law for violation of this statute is imprisonment for one year or a fine of $ 5,000 or both, and a violation is therefore a misdemeanor. The day the information was filed, the defendant appeared before the Court, offering to enter a plea of guilty to the section 1028 offense, a step that both sides described as being the product of a plea bargain.

 The Court requested the prosecution to make the factual proffer required by Rule 11(f), Fed. R. Crim. P., and that proffer revealed, as did the response of defendant's counsel, that the document which defendant had misused, was a "green card" as described in section 1546, rather than merely the less formal identification documents protected by section 1028. *fn9" In the course of the proceeding before the Court, the parties at times described the plea as being one to a lesser included offense which the prosecution was willing to accept under the circumstances. At the conclusion of the proceedings, the Court deferred a decision with regard to the acceptance of the plea.

 This kind of plea to a lesser offense, or to a smaller number of violations than alleged in the charging papers, has been customary for a long period of time in both federal and state courts. Such pleas not only have not been particularly unusual or often substantively unexceptional as means for disposing of the business of the criminal courts, but it has been regarded as doubtful by many authorities that the criminal justice system could continue to function effectively, in view of the high volume of criminal cases, without such plea bargains and the time and resources they save. *fn10"

 Prior to the enactment of the sentencing statute and absent the plea bargain, a judge could have imposed a sentence for the "green card" felony charged in Bethancurt's original indictment ranging from probation to imprisonment for five years. *fn11" The sentencing law and the guidelines effected a significant change in this respect. When the computation required by the guidelines is made, the sentence of imprisonment that must be imposed -- absent unusual or extraordinary factors justifying a departure *fn12" -- is from 0 to 4 months. *fn13" Since such a sentence reflects the judgment of the sentencing commission pursuant to the mandate of the Congress, the Court is of course bound by its judgment.

 As noted, the United States Attorney, pursuant to a plea bargain, reduced the charge against Bethancurt from the "green card" felony to the misdemeanor of a simpler type of fraud. This reduced offense carries a maximum penalty of imprisonment for a period of one year, and, had the crime been committed prior to the effective date of the sentencing statute, the Court would have had sentencing latitude from probation up to the one-year maximum. Under the new statute, the Court is, of course, once again bound to compute the sentence under the guidelines. Such a computation reveals a sentence of 0 to 4 months *fn14" -- identical to that required for the section 1546 felony. *fn15"

 The obvious effect of that concurrence in sentences is that Bethancurt will receive no sentencing benefit whatever from his plea: the sentencing range is the same either way, whether he pleads guilty to the felony or to the misdemeanor. *fn16" Indeed, the even more striking fact is that, if the defendant had elected to go to trial on the original felony charge and had been convicted of that charge following trial, rather than to plead guilty to the misdemeanor, his guideline sentence would have been no more severe in ...

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