UNITED STATES OF AMERICA, PETITIONER V. RAUL CHAVEZ-SANCHEZ

   No. 88-550

   In the Supreme Court of the United States

   October Term, 1988

   The Solicitor General, on behalf of the United States of America,
petitions for a writ of certiorari to review the judgment of the
United States Court of Appeals for the Ninth Circuit in this case.

   Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Ninth Circuit

                      PARTIES TO THE PROCEEDINGS

   The United States of America and Raul Chavez-Sanchez were parties
in No. 88-5109 in the court of appeals.  Jose Gubiensio-Ortiz and Al
Kanahele, Warden, Metropolitan Correctional Center, San Diego,
California, were parties in No. 88-5848 in the court of appeals.

            TABLE OF CONTENTS @@ Opinions below @@ Jurisdiction @@

Constitutional and statutory provisions involved @@ Statement @@
Reasons for granting the petition @@ Conclusion @@ Appendix A @@
Appendix B @@ Appendix C

                            OPINIONS BELOW

   The amended opinion of the court of appeals (App., infra, 1a-86a)
is not yet reported.  The oral ruling of the district court (App.,
infra, 87a-89a) is unreported.

                             JURISDICTION

   The judgment of the court of appeals was entered on August 23,
1988.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   Relevant provisions of Articles I, II, and III of the Constitution
of the United States and of the Sentencing Reform Act of 1984, 18
U.S.C. (Supp. IV) 3551-3742 and 28 U.S.C. (Supp. IV) 991-998, are
reproduced in the appendix to the petition (at 47a-85a) in United
States v. Mistretta, cert. before judgment granted, No. 87-1904 (June
13, 1988).  /1/

                          QUESTION PRESENTED

   The United States Sentencing Commission was established by the
Sentencing Reform Act of 1984 as "an independent commission in the
judicial branch of the United States." 28 U.S.C. (Supp. IV) 991(a).
It is a permanent body with seven voting members, at least three of
whom must be federal judges.  The members are chosen by the President
with the advice and consent of the Senate, and they are removable by
the President for cause.  The primary function of the Commission is to
develop binding determinate sentencing guidelines for the federal
courts.  The question presented by this case is:

   Whether the sentencing guidelines are invalid because the
Sentencing Commission is constituted in violation of separation of
powers principles.

                               STATEMENT

   1. Respondent was indicted in the United States District Court for
the Southern District of California on five counts of the
transporation of illegal aliens, in violation of 8 U.S.C. (Supp. IV)
1324(a)(1)(B);  illegal entry into the United States, in violation of
8 U.S.C. (Supp. IV) 1325;  and making false statements to a federal
official, in violation of 18 U.S.C. 1001.  Respondent thereafter moved
to have the Sentencing Reform Act of 1984, 18 U.S.C. (Supp. IV)
3551-3742 and 28 U.S.C. (Supp. IV) 991-998, held unconstitutional on
the grounds that the Sentencing Commission was constituted in
violation of separation of powers principles, and that Congress
delegated excessive authority to the Sentencing Commission to
establish binding and determinate sentencing guidelines.  /2/
Subsequently, respondent entered a plea of guilty to one count of
illegal entry into the United States.  App., infra, 6a.  /3/

   At sentencing, the district court held that the Sentencing Reform
Act violates separation of powers principles.  The court orally
incorporated and joined two opinions issued by other district judges
in that district, United States v. Arnold, 678 F. Supp. 1463 (S.D.
Cal. 1988), appeal pending (9th Cir.), and United States v.
Lopez-Barron, 685 F. Supp. 725 (S.D. Cal. 1988).  App., infra, 88a.
In those cases, the courts held that, because the Sentencing
Commission performs an inherently executive rulemaking function, the
Act is unconstitutional since it places the Commission in the Judicial
Branch.  The courts also held that the service of Article III judges
on the Sentencing Commission impairs the independence of the
judiciary.  Lastly, both courts declined to sever the language in the
Act designating the Commission as an agency in the Judicial Branch, on
the ground that doing so would frustrate congressional intent by
transferring the Commission from one branch of government to another.
United States v. Arnold, 678 F. Supp. at 1469-1472;  United Stated v.
Lopez-Barron, 685 F. Supp. at 727-731.

   After ruling that the sentencing guidelines are unconstitutional,
the district court sentenced respondent to 18 months' imprisonment and
a $50 special assessment.  Judgment and Commitment Order, United
States v. Chavez-Sanchez, No. 87-1333-JLI (entered Mar. 11, 1988).
Although the term of imprisonment exceeded the maximum permitted under
the applicable guidelines, the district court did not impose a period
of supervised release, as required by the guidelines.  Ibid.

   2. The court of appeals affirmed by a divided vote.  App., infra,
1a-86a.  /4/ The court held that the function of adopting binding
sentencing rules cannot be performed by an agency in the judicial
branch.  Id. at 12a-32a.  The court also held that, even if the
Sentencing Commission could be characterized as an executive or an
independent agency federal judges cannot serve on the Commission,
because Article III judges cannot serve on a substantive policymaking
body, even in an extra-judicial capacity.  Id, at 32a-45a.  /5/

   Judge Wiggins dissented.  App., infra, 50a-86a.  He believed that
the Commission was properly located in the judicial branch.  In his
view, the function of promulgating sentencing rules is analogous to
the role that the courts play in developing procedural rules, and that
the allocation of that power does not undermine the ability of any
other branch to carry out its constitutionally assigned duties.  Id.
at 58a-83a.  Judge Wiggins also concluded that judges may participate
in their individual capacities in the activities of the Commission.
Id. at 72a-82a.  /6/

   3. The government thereafter moved for a stay of the court of
appeals' judgment invalidating the sentencing guidelines pending this
Court's decision in United States v. Mistretta, cert. before judgment
granted, Nos. 87-1904 and 87-7028 (to be argued Oct. 5, 1988).  The
court of appeals denied the motion without opinion.  App., infra, 90a.

                   REASONS FOR GRANTING THE PETITION

   The court of appeals held the sentencing guidelines invalid on
separation of powers grounds.  The validity of the guidelines is
presently before the Court in United States v. Mistretta, supra.  For
the reasons given in our brief in that case, we believe that the court
of appeals erred.  The petition in this case should be held for
dispositon in light of the Court's decision in Mistretta.

                              CONCLUSION

   The petition for a writ of certiorari should be held and disposed
of as appropriate in light of the Court's decision in United States v.
Mistrette, cert. before judgment granted, Nos. 87-1904 and 87-7028 (to
be argued Oct. 5, 1988).

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   SEPTEMBER 1988

   /1/ We have provided counsel for respondent with a copy of our
petition and brief in Mistretta.

   /2/ The sentencing guidelines went into effect on November 1, 1987.
 Because the crimes charged against respondent occurred on or about
November 19, 1987, the sentencing guidelines are applicable to this
case.  App., infra, 6a.

   /3/ The remaining counts in the indictment were eventually
dismissed with prejudice on the government's motion.  Judgment and
Commitment Order, United States v. Chavez-Sanchez, No. 87-1333-JLI
(entered Mar. 11, 1988).

   /4/ Respondent's case was consolidated in the courts of appeals
with Gubiensio-Ortiz v. Kanahele, No. 88-5848, which was an appeal
from the denial of a habeas corpus petition.  In that case, a federal
prisoner filed a habeas corpus petition claiming that the sentencing
guidelines are invalid and that the provision of the Sentencing Reform
Act modifying the pre-Act system of awarding "good time" credits to
federal prisoners is not severable from the remainder of the Act and
therefore must also be struck down.  The district court held that the
sentencing guidelines are unconstitutional, but that the modification
to the "good time" laws was severable.  The court of appeals reversed,
holding that the provision in the Sentencing Reform Act modifying the
award of "good time" credits is not severable from the remainder of
the Act.  App., infra, 5a, 46a-50a.

   We have not sought review of the judgment entered by the court of
appeals insofar as it awarded relief to Gubiensio-Ortiz in No. 88-5848
because that case had become moot before the court of appeals issued
its ruling.  Gubiensio-Ortiz completed his sentence on July 24, 1988,
almost one month before the court of appeals handed down its decision
on August 23, 1988.  In the government's motion for a stay of the
court's ruling, we suggested that the court of appeals should vacate
as moot that part of the judgment addressing the validity of the "good
time" credit provision, because that issue was raised only in the
context of the habeas corpus appeal.  In denying the stay motion, the
court of appeals did not address this mootness problem.  App., infra,
90a.  Nevertheless, because that case is indeed moot, our petition
here is limited to the Chavez-Sanchez case, No. 88-5109 in the court
of appeals.

   /5/ The court did not reach the question whether the Sentencing
Reform Act unlawfully delegates legislative power to the Sentencing
Commission.  App., infra, 12a n.2.

   /6/ Judge Wiggins addressed respondent's delegation claim and
concluded that the Act did not unlawfully delegate legislative power
to the Sentencing Commission.  App., infra, 53a-58a.

   APPENDIX