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May 27, 1988

United States of America, Plaintiff
Eric Brittman, Defendant

The opinion of the court was delivered by: EISELE


 Mr. Eric Brittman, 26, has been convicted by a jury of robbing the East Branch of the First Commercial Bank of Little Rock, Arkansas. The indictment contained two counts, one charging the bank robbery under 18 U.S.C. § 2113(d), and the other a conspiracy to rob the bank based on 18 U.S.C. § 371. The latter count was dismissed upon motion of the government. The bank robbery count reads as follows:

That on or about November 16, 1987, in the Eastern District of Arkansas, ERIC BRITTMAN, by force and violence and by intimidation, did take from the person and presence of Beth Aldrich $ 37,148 in money belonging to and in the care, custody, control, management and possession of First Commercial Bank, East Branch, Little Rock, Arkansas, the deposits of which were then insured by the Federal Deposit Insurance Corporation, and in committing the aforesaid acts ERIC BRITTMAN did put in jeopardy the life of Beth Aldrich by the use of a dangerous weapon, that is, a handgun, all in violation of Section 2113(d), Title 18, United States Code.

 This Court is aware that every district court in the United States has faced, is presently facing, or will soon face such challenges. It has attempted to obtain copies of the opinions already handed down, but it is also aware that it is in the interest of all concerned to have these challenges resolved by the U. S. Supreme Court as soon as possible.

 For the reasons set forth below this Court is declaring the Sentencing guidelines and the Sentencing Commission unconstitutional, but it agrees with Judge Heaney in U.S.A. v. Jesus Estrada, 680 F. Supp. 1312 (D.Minn. 1988), that the following provisions of the Sentencing Reform Act are severable and should therefore remain in effect:

(a) the detailed set of principles or sentencing standards which narrow the judge's discretion in imposing sentences;
(b) the requirement that judges state their reasons for imposing particular sentences, thus opening up the sentencing process to the public.

 However, the Court does not agree that the appellate review of sentences can properly be severed and preserved since the right of appeal and the scope of appeal are so intimately tied to the Guidelines themselves. Nor does the Court agree that "real time" sentencing can be severed because, without the provisions for supervised release, prisoners would go straight from imprisonment to absolute freedom contrary to congressional intent. So we go back to the pre November 1, 1987, situation with the parole arrangements intact.

 Finally the Court recognizes that it ultimately may be reversed and the Guidelines and the Sentencing Commission held constitutional. It has chosen therefore to follow a "two-track" approach. It will, at the time of sentencing, state and explain what its sentence would be assuming the Guidelines are upheld. And it will also state and explain what its sentence would be if the Guidelines are struck down as unconstitutional. Of course, the sentence which will be entered on the Judgment and Commitment form will be the latter only, because that will be the only lawful sentence under the opinion of the Court. However, if the Court is reversed and the Guidelines upheld, a new Judgment and Commitment will have to be entered, but this may be done without any further sentencing hearing. This approach will, it is hoped, effect some efficiency in the light of the uncertainties involved.

 The undersigned has been authorized by the other Judges of the Eastern District of Arkansas, with the exception of Judge Stephen Reasoner, to state thst they agree that the Guidelines and Commission are unconstitutional, although they may not individually agree with the undersigned as to all of the different grounds set forth in the following opinion. They also agree that certain provisions, as set forth above, are severable and will therefore remain in full force and effect. Finally, they agree to follow the two-track sentencing approach described above until questions concerning the constitutionality of the guidelines are finally resolved. Judge Reasoner is not convinced that the Guidelines are unconstitutional and has no present opinion on the severability issue. He has agreed to follow the "two track" sentencing approach.

 The opinion below is separated and captioned more to provide emphasis than to suggest that any of the individual sections are unrelated and independent of the others. In truth, there is much overlap, ...

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