On Appeal From the United States District Court For the Middle District of Pennsylvania; D.C. Civil Action No. 89-1701.
Stapleton, Cowen and Weis, Circuit Judges
Appellant Kathleen Ehrsam asserts that the Pennsylvania Mandatory Minimum Sentencing Act ("the Act"), under which she was sentenced, violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The district court dismissed Ehrsam's petition for a writ of habeas corpus, and she appeals. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253, and our review of the district court's legal conclusions is plenary. Bond v. Fulcomer, 864 F.2d 306 (3d Cir. 1989). We will affirm the judgment of the district court.
In 1983, Ehrsam was convicted in the Pennsylvania Court of Common Pleas of aggravated assault, simple assault, recklessly endangering another person, and possession of an instrument of crime. Pursuant to the Act, she was sentenced to the mandatory minimum of five years incarceration.
The Act lists a number of offenses, including aggravated assault, for which the mandatory minimum sentence of five years is applicable.*fn1 If a defendant is convicted of one of these offenses, two further requirements must be met before the minimum sentence will be binding on the sentencing judge. First, the Commonwealth must give notice before sentencing of its intention to proceed under this section. Second, the sentencing judge must determine by a preponderance of the evidence that the defendant "visibly possessed a firearm during the commission of the offense."
In McMillan v. Pennsylvania, 477 U.S. 79, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986), the Supreme Court of the United States rejected a due process challenge to that portion of the Act which provides that the state need only prove "visible possession" by a preponderance of the evidence. The Court held that visible possession of a firearm is not an element of the crime charged and, accordingly, need not be proved beyond a reasonable doubt. The Court had no occasion to address the arguments here advanced by Ehrsam.
Ehrsam argues that the Act violates the Due Process Clause, first, because the Act prohibits the judge from considering the individual circumstances of the defendant, and, second, because the Act gives the prosecutor discretion to determine after the finding of guilt whether to seek mandatory minimum sentencing under the Act.
The Supreme Court has never recognized a constitutional right to individualized sentencing, and appellant has cited no court of appeals decision that recognizes such a right. Moreover, the Supreme Court in dicta, this court, and other courts of appeals have expressly declined to recognize such a right.
In Lockett v. Ohio, 438 U.S. 586, 602, 57 L. Ed. 2d 973, 98 S. Ct. 2954 (1978), the Supreme Court observed that "the concept of individualized sentencing in criminal cases generally, although not constitutionally required, has long been accepted in this country." (emphasis added). The Court also noted that "legislatures remain free to decide how much discretion in sentencing should be reposed in the judge or jury in noncapital cases." Id. at 603. Recently, in upholding the constitutionality of the federal sentencing guidelines against an attack based on separation of powers principles, the Court stated that "the scope of judicial ...