The opinion of the court was delivered by: DIAMOND
Randolph Kerr and Russell Larew challenge the constitutionality of the Criminal Livelihood provision, § 4B1.3, of the Sentencing Guidelines. This provision mandates an offense level of no less than 13 and forbids probation for a defendant who "committed an offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income." Defendants assert, first, that this provision discriminates against indigent persons in violation of the equal protection and due process principles contained in the Fifth Amendment.
Second, they maintain that the Criminal Livelihood guideline unconstitutionally deprives the sentencing judge of discretion. Neither argument persuades us, and we hold that the Criminal Livelihood provision complies with the due process and equal protection strictures of the Constitution.
The Sentencing Reform Act of 1984, Pub.L. 98-473, 98 Stat. 1988, overhauled sentencing practices in the federal courts. Before its enactment, federal district court judges enjoyed nearly unbounded discretion to impose sentences within broad statutory ranges; now, guidelines promulgated by the United States Sentencing Commission, see 28 U.S.C. §§ 991-994, assign a specific offense level score for a defendant's current criminal conduct and a "Criminal History Category" for his record of past criminal conduct, which translate into a relatively narrow range of permissible sentences. See generally United States Sentencing Commission Guidelines Manual, Ch. 2, 4, 5 (1987).
We are not called upon in this case to determine the constitutionality of the Act as a whole with regard to any issue but due process. The parties explicitly waived any other constitutional challenges. We consider it unwise to decide important constitutional issues without the benefit of full adversarial argument.
We turn to the facts of this case.
Kerr and Larew pled guilty to one count of possession of stolen mail, 18 U.S.C. § 1708. Since their offense occurred after November 1, 1987, the Sentencing Reform Act of 1984, Pub.L. 98-473, 98 Stat. 1988, applies to their sentencing. See 18 U.S.C. § 3551. The probation officer prepared a presentence report for each defendant. Before application of the Criminal Livelihood provision, each defendant had an offense level of 8 and a criminal history category of IV. This translates to a sentencing range of 10 to 16 months. Guidelines Manual, p. 5.2 (Sentencing Table). Within this range, the defendants would be eligible to serve half of their sentences on supervised release. Guidelines Manual § 5C2.1(d).
However, the presentence investigation revealed that the defendants stole and cashed 40 to 50 Treasury checks worth between $ 10,000 and $ 15,000 over the past 18 months. The probation officer concluded that this was "a pattern of criminal conduct." See 28 U.S.C. § 994(i)(2); Guidelines Manual § 4B1.3. As the defendants had no regular employment and received $ 500 or less annually in public assistance, the defendants derived a substantial portion of their income from this pattern of criminal conduct, and the probation officer recommended application of the Criminal Livelihood guideline, § 4B1.3. This guideline increases each defendant's offense level score to 13 and disqualifies them from probation. Id. The range of permissive sentences is 24 to 30 months, all of which must be incarceration. See Guidelines Manual § 5C2.1.(f).
In accordance with the guidelines, § 6A1.2, and our Local Rule 41, the defendants filed position papers raising several objections to the conclusions in the presentence report. In these papers the defendants raised the two constitutional challenges before us now. We directed the parties to brief these issues as well as the other constitutional issues raised in Frank and similar cases or to advise the court in writing of their decision to waive those other challenges.
In their briefs, Kerr and Larew elaborate on the argument that the Criminal Livelihood guideline and Section 994(i)(2) impermissibly discriminate against the indigent. Between two defendants who engaged in exactly the same pattern of criminal activity but who have different financial resources aside from their criminal income, the Criminal Livelihood guidelines will condemn the indigent defendant to many more months in prison and ineligibility for parole. According to Kerr and Larew, poverty functions as the sole justification for an extended term of imprisonment. They contend that it is irrational to tie the prevention of recidivism, the alleged purpose of the Criminal Livelihood provision, to a defendant's financial resources. This irrational discrimination based upon wealth violates the equal protection and due process principles explained in Bearden v. Georgia, 461 U.S. 660, 76 L. Ed. 2d 221, 103 S. Ct. 2064 (1983), and its antecedents.
Relying on United States v. Frank, supra, the defendants further argue that the guideline's divestment of judicial sentencing discretion violates due process. They acknowledge that the legislature can eliminate sentencing discretion, but "the application of a mechanical sentencing procedure which prohibits the sentencing court from assessing circumstances applicable to a Defendant does violate rights of due process of law." Brief in Support of Defendant Larew's Position Paper Regarding Sentencing 5. The guidelines' evil lies in the severe restrictions they place on the weight to be given the mitigating circumstances traditionally offered in sentencing.
The government concedes that all other things being equal, the Criminal Livelihood provision may result in more severe treatment for an indigent defendant. Government's Response With Respect to the Constitutionality of the Criminal Livelihood Provision of the Guidelines 3. However, since indigency is not a suspect classification, statutory distinctions based upon it will be upheld so long as the distinction "bears some rational relationship to a legitimate state purpose." United States v. Hawkins, 811 F.2d 210, 216 (3d Cir. 1987). See also Marshall v. United States, 414 U.S. 417, 422, 38 L. Ed. 2d 618, 94 S. Ct. 700 (1974). According to the government, the legislative history of the Dangerous Special Offender statutes, 18 U.S.C. § 3575(e)(2) (repealed by Pub.L. 98-473, Title II, § 219(a), Oct. 12, 1984, 98 Stat. 2027), and 21 U.S.C. § 849(e)(2) (repealed by Pub.L. 98-473, Title II, Ch. II, § 212(a)(2), Oct. 12, 1984, 98 Stat. 1987), upon which the Criminal Livelihood provision is based in part, indicates a rational basis for these distinctions. These statutes aim at preventing recidivism by imposing heavier penalties on professional criminals, those who make their livelihood from crime. An increased penalty is imposed "because the defendant has chosen crime as a profession, as indicated by a pattern of criminal activity and a lack of any other means of livelihood," not because the defendant is indigent. Government's Response 12-13.
The government argues that Frank was decided incorrectly. The power to specify punishment for crimes belongs to the legislative branch. Only when faced with the death penalty does a defendant have a constitutional right to individualized and discretionary punishment.
A. Discrimination Against the Indigent.
Initially, we find unconvincing Larew's argument that the Criminal Livelihood guideline deviates from the statutory mandate. Section 994(d) of Title 28 demands neutrality as to socioeconomic status, but this command is not absolute. See S.Rep.No. 98-225, p. 171 n. 409, 98th Cong., 2d Sess., reprinted in 1984 U.S. Code Cong. & Ad. News 3182, 3354. It is unlikely that the Criminal Livelihood provision of the guidelines offends the statutory directive, for the provision is not an innovation of the Sentencing Commission; rather, it comes verbatim from another subsection of the same statute upon which Larew relies: "The Commission shall assure that the guidelines specify a sentence to a substantial term of imprisonment for categories of defendants in which the defendant committed the offense as part of a pattern of criminal conduct from which he derived a substantial portion of his income." 28 U.S.C. § 994(i)(2) (emphasis added). We accept this more specific language as more precise indication of the Congressional intent. See Morton v. Mancari, 417 U.S. 535, 550-51, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974).
The statutory issue aside, we hold that the Criminal Livelihood provision does not unconstitutionally discriminate on the basis of a defendant's financial resources. Although we reach the same result that the government advocates, our analysis differs. We subject this legislation to more ...