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March 30, 1988

United States, Plaintiff,
Alan Frank, Defendant

The opinion of the court was delivered by: ZIEGLER

 I. History of Case

 Pending before the court are the constitutional challenges of defendant, Alan Frank, to the Sentencing Reform Act of 1984, 28 U.S.C. §§ 991-98 (1987), and the guidelines promulgated by the United States Sentencing Commission. We agree with defendant that the sentencing guidelines mandate a procedure that violates the Due Process Clause of the Fifth Amendment because it unduly limits a defendant's right to present relevant evidence to a district court that will weigh the facts in determining an appropriate judgment of sentence, and that the Act violates the separation of powers doctrine because Congress mandated that Article III judges serve on an executive commission, and perform executive duties and functions. We have given serious consideration to the remaining contentions of defendant and find them to be without merit.

 Alan Frank was found guilty by a jury of Flight to Avoid Prosecution in violation of 18 U.S.C. § 1073. The jury found that Frank fled the jurisdiction to avoid state court charges of forgery and theft that were about to be filed in the Criminal Division of the Court of Common Pleas of Allegheny County, Pennsylvania.

 After the verdict, the United States filed a position paper with respect to sentencing contending that, with appropriate adjustments, the total offense level is 17 mandating a minimum period of incarceration of 24 months and a maximum period of 30 months. The Probation office has concluded that the total offense level is 12 thereby establishing a guideline range of 10 months of confinement to a maximum period of 16 months. Defendant contends that, if he receives the process that is due, the sentence will be probation or, at worst, a minimum period of incarceration.

 The sentencing is scheduled for April 1, 1988 and Frank seeks to introduce facts that he contends are relevant to our jurisprudential function but which were given inadequate consideration by the Sentencing Commission. He further contends that the guidelines arbitrarily limit the authority of a district court to weigh the facts and determine a fair and just sentence. In light of the foregoing, there can be no dispute that Alan Frank has standing and that the issues are ripe for adjudication.

 II. The Due Process Violation

 Defendant challenges the constitutionality of the sentencing procedures under which the judgment of sentence will be imposed. Initially, defendant contends that the United States Sentencing Commission's use of a "charge offense sentencing" scheme, rather than a "real offense sentencing" scheme violates due process. *fn1" Defendant argues that the use of a pending charge for any purpose in calculating the appropriate sentence violates due process. However, as the United States points out, mere consideration of such conduct at the time of sentencing does not violate a defendant's right to due process. See United States v. Baylin, 696 F.2d 1030 (3d Cir. 1982). Defendant's initial argument is without merit.

 Defendant's next argument presents a more difficult question. Frank contends that the application of a mechanical sentencing procedure violates his right to due process. Defendant protests the severe restriction mandated by the guidelines on a district court's ability to assess the circumstances of the case in determining an appropriate sentence.

 We will first examine whether the guidelines restrict a district court's ability to assess a defendant's circumstances in determining an appropriate sentence. The sentencing guidelines arrive at a sentencing range by considering the following categories: (1) the offense conduct; (2) the defendant's role in the offense; (3) whether the defendant obstructed the proceeding in any way; (4) whether the defendant accepted responsibility; and (5) the criminal history. Each category assigns a specific numerical value (termed "offense level") when certain factual circumstances are present, particular to the offense. This offense level is the Commission's determination of the significance that certain facts should play in arriving at an appropriate sentence. To apply the guidelines, the probation office reviews the facts, determines the applicable categories, and adds the offense level to determine the appropriate range of sentence. See Sentencing Guidelines, Part B. If any facts are disputed, the district court must resolve the dispute and then adjust the total offense level, if necessary. See Sentencing Guidelines, § 6A1.3, Commentary. A district court does not have discretion to adjust the total offense level, established by the guidelines, once the specific factual findings are made. See 18 U.S.C. § 3553(b). Thus, once the fact finding is complete, the guidelines establish the sentencing range, not the judge.

 A district court is permitted to sentence without the guidelines only if the court finds "there exists an aggravating or mitigating circumstance of a kind, or to a degree that was not adequately taken into consideration by the Sentencing Commission in formulating the guidelines." 18 U.S.C. § 3553(b), as amended, Pub.L. No. 100-182, § 3 (December 7, 1987). Further, "where the applicable guidelines, specific offense characteristics, and adjustments do take into consideration a factor listed . . . departure from the guidelines is warranted only if the factor is present to a degree substantially in excess of that which is ordinarily involved in the offense conviction." Sentencing Guidelines, § 5K2.0. The guidelines also provide that, other than specifically provided in the guidelines, age, education, vocational skills, mental and emotional conditions, physical condition, previous employment record or family and community ties are not ordinarily relevant in determining whether a sentence should be outside the guidelines. See Sentencing Guidelines, §§ 5H1.1-1.6. In sum, we agree with defendant and hold that the sentencing guidelines severely restrict a district court's ability to individualize a defendant's sentence. We must now determine whether this restriction violates due process.

 The Due Process Clause provides that "No person shall be . . . deprived of life, liberty, or property, without due process of law." The Court of Appeals has noted: "The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner but the concept is flexible, calling for procedural protection as dictated by the particular circumstance." Kahn v. United States, 753 F.2d 1208 (3d Cir. 1985). The Due Process Clause has been applied to sentencing procedures, but this process does not "implicate the entire panoply of criminal trial rights." Gardner v. Florida, 430 U.S. 349, 358 n.9, 51 L. Ed. 2d 393, 97 S. Ct. 1197 n.9 (1977); United States v. Delker, 757 F.2d 1390 (3d Cir. 1985). As the Supreme Court has stated: "The defendant has a legitimate interest in the character of the procedure which leads to the imposition of sentence." Gardner, 430 U.S. at 358. However, a party advancing a due process challenge can assert only that the procedure violates due process as applied to him. United States v. Palma, 760 F.2d 475, 477 (3d Cir. 1985). Thus, Frank, can assert only that the sentencing guideline procedure, utilized to select the sentencing range, violates his due process rights. The crux of defendant's challenge is that the sentencing guidelines procedure prevents the district court from according the proper weight at sentencing to the pending state court charges and from consideration of his family situation and other mitigating circumstances.

 Since a district court's ability to assess the weight of facts at the time of sentencing is deeply etched in our jurisprudence, United States v. Barker, 771 F.2d 1362, 1365 (9th Cir. 1985), the issue takes on added significance. *fn2" Previously, due process challenges have been directed to the evidence that a court may consider at sentencing, and the Due Process Clause does not limit what a court may consider. See Williams v. New York, 337 U.S. 241, 93 L. Ed. 1337, 69 S. Ct. 1079 (1949). However, due process does require that a defendant be afforded the opportunity to assure that accurate and reliable information is presented to a district court, United States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987), and that judgment is imposed on the basis of materially true statements and accurate information. Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948).

 Applying these precepts, we must first determine whether Alan Frank has a due process right of opportunity to assure that the sentence imposed by this court is based upon circumstances unique to him. If he has such a right, we must determine what process is due to protect that right and whether the sentencing guidelines meet the test. See Morrissey v. Brewer, 408 U.S. 471, 923 S. Ct. 2593, 33 L. Ed. 2d 484 (1972).

 To determine whether Frank has a right of due process, we must analyze the sentencing process. Sentencing is composed of two core determinations: first, a determination of the facts and circumstances of the case with reliability; second, a determination of the relevance of the established facts and circumstances that give rise to an appropriate sentence for this defendant. Under the prior sentencing system, a defendant's due process concerns related to the ability to challenge evidence, presented to a court, in an effort to aid the court in evaluating the facts and circumstances. In response, courts have recognized that a sentencing procedure at which a defendant is sentenced without the opportunity to rebut the information relied upon by the judge violates due process. See Romano, supra; Collins v. Buchkoe, 493 F.2d 343 (6th Cir. 1974). In recognizing that due process provides a defendant with the opportunity to contradict evidence presented against him or her, courts have protected a defendant's ability to affect the court's assessment of that evidence in determining an appropriate sentence. Under the sentencing guidelines, however, a defendant has no opportunity to affect the court's assessment of the appropriate sentence based upon the facts and circumstances. The guidelines remove that opportunity. In our judgment, due process protects a defendant's opportunity to affect a court's assessment of a proper sentence. As rehearsed, sentencing is more than a determination of the existence of facts, it also involves the weighing of facts as a whole to determine the appropriate sentence for a defendant. The weighing process, at sentencing, is the essence of the jurisprudential function for it affects a defendant's liberty interest as much as, if not more than, the court's determination of the existence of certain facts. If due process protects a defendant's ability to challenge facts presented to a district court at sentencing, it must also protect the ability to challenge the weight accorded to those facts. Without such protection, the risk of an improper sentence is just as great as when a defendant is without the opportunity to rebut facts presented to a district court. We conclude that due process requires that a defendant be afforded the opportunity to participate in that weighing process.

 Next we must determine what process is due and whether the sentencing guidelines meet that test. Due process is a flexible concept that calls for such procedural protection as the particular situation demands. Gardner v. Florida, 430 U.S. at 358 n.10. What process is due in a particular case is determined by the balancing test of Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). See United States v. Romano, supra; United States v. Rohm and Haas Co., Inc., 669 F. Supp. 672 (D.N.J. 1987). Four factors must be considered: (1) the nature of the individual interest; (2) the risk of error associated with the present procedures; (3) the value of additional safeguards; and (4) the government's interest in avoiding undue fiscal or administrative burdens. Mathews, 424 U.S. at 335.

 In this case, Alan Frank's liberty interest is at stake and therefore his individual interest in the sentencing procedure is substantial. On the other hand, the risk of error under the sentencing guidelines is great. The procedures mechanically apply the facts of a case to a formula which give little, inadequate or insignificant regard to a defendant's individual circumstances, a procedure that increases the risk of unjust and incorrect judgments. Frank is prepared to offer evidence of mitigating circumstances which, if accepted by the court, warrant leniency; however, because those circumstances have been covered by the guidelines, defendant is precluded from presenting, and the court is prohibited from determining the weight, if any, to be accorded to those mitigating factors. Thus, the risk of error in these proceedings is great.

 The third factor, the value of additional procedural safeguards, also favors defendant. Providing a court with the discretion to determine the actual sentence will greatly decrease the risk of error in the sentencing process. It will enable the court to properly assess the evidence and determine an appropriate judgment of sentence for the defendant, given his circumstances.

 Finally, the fiscal or administrative burdens of any additional procedural safeguards are non-existent and defendant's due process rights can be protected by permitting the court to exercise more discretion in determining an appropriate sentence. This grant of additional discretion would ...

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