United States v. Eric Brittman, United States of Am. v. Eric Brittman, 872 F.2d 827 (8th Cir. 1989). · Go Syfert
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United States v. Eric Brittman, United States of Am. v. Eric Brittman, 872 F.2d 827 (8th Cir. 1989). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1990 · …are being applied without giving defendants an appropriate opportunity to contest the facts bearing upon the various predicate factors that the guidelines make relevant to sentencing. ✓
cited 2× by 1 distinct case, last quoted 1990 · …does not foreclose due-process challenges to the guidelines as applied in individual cases. ✓
cited 2× by 1 distinct case, last quoted 2003 · …sentencing judges retained discretion ... to consider 1022 adjusting the base level for mitigating and aggravating circumstances, ... and to determine when to depart from the guidelines. ✓
112 citation events (17 in the last 25 years) across 19 distinct courts.
Strongest positive: United States v. Meirick (ca8, 2012-03-16)
Treatment trajectory · 1989 → 2026 · click a year to view as-of
1989 2007 2026
Top citers, strongest first. 45 distinct citers. How cited ↗
discussed Cited as authority (rule) United States v. Meirick
8th Cir. · 2012 · confidence medium
Moreover, “the Constitution does not guarantee individualized sentencing, except in capital cases.” United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 493 U.S. 865 , 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
cited Cited as authority (rule) United States v. Johnson
S.D.W. Va · 2004 · confidence medium
See, e.g., U.S. v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989); U.S. v. Brittman, 872 F.2d 827, 829 (8th Cir.1989). 3 .
examined Cited as authority (rule) United States v. Dyck (3×)
D.N.D. · 2003 · confidence medium
In United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), the Eighth Circuit reversed the district court’s finding that the Guidelines were facially unconstitutional.
cited Cited as authority (rule) United States v. Dishawn Omar Curry
8th Cir. · 2001 · confidence medium
First, “the Constitution does not guarantee individualized sentencing, except in capital cases.” United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Willie S. Magee, United States of America v. Gerry McCrary Also Known as G-Man, United States of America v. William Friends, Also Known as Bill, Willie
8th Cir. · 1994 · confidence medium
See, e.g., United States v. Wayne, 903 F.2d 1188, 1198 (8th Cir.1990); United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989); and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), cert. denied, 493 U.S. 865 , 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
discussed Cited as authority (rule) United States v. Magee
8th Cir. · 1994 · confidence medium
See, e.g., United States v. Wayne, 903 F.2d 1188, 1198 (8th Cir.1990); United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989); and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), cert. denied, 493 U.S. 865 , 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
discussed Cited as authority (rule) United States v. Bill Lee Scott
10th Cir. · 1994 · confidence medium
Accord United States v. Draper, 888 F.2d 1100, 1105 (6th Cir.1989) (dual sentencing not unconstitutional nor an abuse of discretion); United States v. Brittman, 872 F.2d 827, 829 (8th Cir.) (upholding district court use of "two-track" system imposing alternate sentences until constitutionality of Guidelines definitively decided), cert. denied, 493 U.S. 865 (1989). 7 None of Defendant's arguments convinces us that the district court's imposition of alternate sentences was improper.
discussed Cited as authority (rule) United States v. Rodney K. Jones
8th Cir. · 1993 · confidence medium
United States v. Jones, 965 F.2d 1507, 1519 (8th Cir.), cert. denied, — U.S. -, 113 S.Ct. 346 , 121 L.Ed.2d 261 , — U.S. -, 113 S.Ct. 439 , 121 L.Ed.2d 358 (1992); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 493 U.S. 865 , 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
discussed Cited as authority (rule) United States v. Gerald Stokes, A/K/A Jerry Stokes, and Robert Stokes
10th Cir. · 1993 · confidence medium
Thus, the record does not supply a factual basis for the argument, and the cases relied upon by defendants requiring a district court to enforce plea agreements are inapposite. 9 The government cites, and the district court relied upon, United States v. Brittman, 872 F.2d 827, 829 (8th Cir.), cert. denied, 493 U.S. 865 (1989), 3 which held valid a sentencing scheme comparable to that employed by the district court in this case.
discussed Cited as authority (rule) United States v. Eddie Lee Galloway (2×)
8th Cir. · 1992 · confidence medium
United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, 493 U.S. 865 , 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
cited Cited as authority (rule) United States v. Mustafa A. Abdullah
8th Cir. · 1991 · confidence medium
E.g., United States v. Weaver, 906 F.2d 359, 360 (8th Cir.1990); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, — U.S. —, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
discussed Cited as authority (rule) United States v. Albert E. Mills. United States of America v. Kenneth B. Wonson. United States of America v. Vernon L. Holland
D.C. Cir. · 1991 · confidence medium
See United States v. Wilkins, 911 F.2d 337, 338-40 (9th Cir.1990); United States v. Sanchez, 908 F.2d 1443, 1445-46 (9th Cir.1990); United States v. Weaver, 906 F.2d 359, 360 (8th Cir.1990); United States v. La Guardia, 902 F.2d 1010, 1013-15 (1st Cir.1990); United States v. Thomas, 884 F.2d 540, 542-43 (10th Cir.1989); United States v. Erves, 880 F.2d 376, 379 (11th Cir.), Cert. denied, - U.S. -, 110 S.Ct. 416 , 107 S.Ct. 381 (1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir.1989); United States v. Pinto, 875 F.2d 143, 144-45 (7th Cir.1989); United States v. Allen, 873 F.2d 963, 9…
cited Cited as authority (rule) Call v. United States
W.D. Mo. · 1991 · confidence medium
United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); see also Mistretta v. United States, 488 U.S. 361 , 109 S.Ct. 647 , 102 L.Ed.2d 714 (1989).
discussed Cited as authority (rule) United States v. Maggie Louise Turpin, United States of America v. Darryl Lee Williams
8th Cir. · 1990 · confidence medium
United States v. Weaver, 906 F.2d 359, 360 (8th Cir.1990) (per curiam); Nunley, supra, 873 F.2d at 186 ; United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); see also United States v. Sanchez, 908 F.2d 1443, 1445-46 (9th Cir.1990) (Sentencing Guidelines do not violate due process); United States v. Smith, 727 F.Supp. 1023, 1029-30 (W.D.Va.1990) (same).
discussed Cited as authority (rule) United States v. Karen Jane Whitehorse
8th Cir. · 1990 · confidence medium
A district court has statutory authority to depart from the guidelines in fixing a sentence if it “finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence *318 different from that described.” 18 U.S.C. § 3553 (b) (1988); see also United States v. Evidente, 894 F.2d 1000, 1003 (8th Cir.), cert. denied, — U.S.-, 110 S.Ct. 1956 , 109 L.Ed.2d 318 (1990); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, …
discussed Cited as authority (rule) United States v. Eric Alan Wayne, United States of America v. Eric Alan Wayne
8th Cir. · 1990 · confidence medium
While the Guidelines do circumscribe the sentencing judge’s exercise of discretion, judges nevertheless retain “some power to fit sentences to the individual offender.” United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
discussed Cited as authority (rule) United States v. Elbert Rankin
8th Cir. · 1990 · confidence medium
The Supreme Court rejected the separation of powers argument in Mistretta v. United States, 488 U.S. 361 , 109 S.Ct. 647, 658-75 , 102 L.Ed.2d 714 (1989), this court has repeatedly, and squarely, held that the Guidelines do not violate principles of due process, see, e.g., United States v. Blackman, 897 F.2d 309, 318 (8th Cir.1990); United States v. Luster, 896 F.2d 1122 , 1129 n. 6 (8th Cir.1990); United States v. White, 890 F.2d 1012, 1013 (8th Cir.1989); United States v. Barnerd, 887 F.2d 841, 841-42 (8th Cir.1989) (per curiam); United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989); Uni…
discussed Cited as authority (rule) United States v. Nelson
D. Kan. · 1990 · confidence medium
Under the Guidelines, sentencing judges " 'retain discretion to accept or reject a plea bargain, to resolve factual disputes about the appropriate base offense level, to consider adjusting that base level for mitigating and aggravating circumstances, to choose from a range of sentences, to set probation conditions, and to determine when to depart from the Guidelines.' ” United States v. Thomas, 884 F.2d at 543 (quoting United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989)). 3 .
discussed Cited as authority (rule) United States v. Julio La Guardia, United States of America v. Eredia Josefa Jimenez-Minalla
1st Cir. · 1990 · confidence medium
United States v. *1015 Lewis, 896 F.2d 246, 249 (7th Cir.1990); United States v. Pinto, 875 F.2d 143, 144-46 (7th Cir.1989); United States v. Allen, 873 F.2d at 966; United States v. Seluk, 873 F.2d at 17; United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989); United States v. Vizcaino, 870 F.2d at 56 ; United States v. White, 869 F.2d at 825 ; United States v. Frank, 864 F.2d at 1010 .
discussed Cited as authority (rule) United States v. Larry Lee White, A/K/A Felix Idleburg, United States of America v. Doris Wade A/K/A Janice Handson
8th Cir. · 1990 · confidence medium
Appellants’ due process challenges were rejected by this court in United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989), United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989) and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Jackie L. Luster, United States of America v. Sue Luster
8th Cir. · 1990 · confidence medium
We have rejected this argument in numerous cases, see, e.g., Barnerd, 887 F.2d at 842 ; United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, - U.S. -, 110 S. Ct. 184 , 107 L.Ed.2d 140 (1989), and do so again here. 7 .
discussed Cited as authority (rule) United States v. Edward Tholl
7th Cir. · 1990 · confidence medium
See United States v. Brady, 895 F.2d 538 , (9th Cir. 1990); United States v. Thomas, 884 F.2d 540, 542-44 (10th Cir.1989); United States v. Erves, 880 F.2d 376, 379 (11th Cir.), cert. denied, — U.S. -, 110 S.Ct. 416 , 107 L.Ed.2d 381 (1989); United States v. Jacobs, 877 F.2d 460, 462 (6th Cir.1989); United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir.1989); United States v. Seluk, 873 F.2d 15, 16-17 (1st Cir.1989) (per curiam); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, - U.S. -, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989); United States v. Vizcaino, 870 F.2d 52, 53-…
discussed Cited as authority (rule) United States v. Michael James Brady, United States of America v. Andre Michelle Lowe (2×)
9th Cir. · 1990 · confidence medium
United States v. Thomas, 884 F.2d 540, 542-44 (10th Cir.1989); United States v. Harris, 876 F.2d 1502, 1504-06 (11th Cir.), cert. denied, — U.S. -, 110 S.Ct. 417 , 107 L.Ed.2d 382 (1989); United States v. Bolding, 876 F.2d 21, 23 (4th Cir.1989); United States v. Pinto, 875 F.2d 143, 145-46 (7th Cir.1989); United States v. Allen, 873 F.2d 963, 966 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 17 (1st Cir.1989) (per curiam); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989); United States v. Vizcaino, 870 F.2d 52, 5…
discussed Cited as authority (rule) United States v. David Keith Belgard
9th Cir. · 1990 · confidence medium
As the Eighth Circuit pointed out in United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989): Under the Guidelines, sentencing judges retain discretion to accept or reject a plea bargain, to resolve factual disputes about the appropriate base offense level, to consider adjusting that base level for mitigating and aggravating circumstances, to choose from a range of sentences, to set probation conditions, and to determine when to depart from the Guidelines.
discussed Cited as authority (rule) United States v. Van Smith
W.D. Va. · 1990 · confidence medium
United States v. Bolding, 876 F.2d 21, 22-23 (4th Cir.1989); United States v. Allen, 873 F.2d 963, 965-966 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 16-17 (1st Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); United States v. Vizcaino, 870 F.2d 52, 56 (2nd Cir.1989); United States v. White, 869 F.2d 822, 825 (5th Cir.1989); United States v. Frank, 864 F.2d 992, 1008-1010 (3rd Cir.1988). 2 The issue raised in this motion, as the court sees it, and by Judge Greene in Roberts , is whether, in light of the way the Guidelines operate, a constitutionally impermissib…
discussed Cited as authority (rule) United States v. Kenneth Wayne Shibley (2×) also: Cited "see"
8th Cir. · 1989 · confidence medium
We noted in United States v. Brittman, 872 F.2d 827, 829 (8th Cir.1989), that the District Court acted prudently in using the two-track procedure, as it rendered a second sentencing hearing unnecessary.
cited Cited as authority (rule) United States v. Patrick John Grant
8th Cir. · 1989 · confidence medium
United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); Huerta, 878 F.2d at 93-94 .
cited Cited as authority (rule) United States v. William Barnerd
8th Cir. · 1989 · confidence medium
See United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989).
discussed Cited as authority (rule) United States v. John Fuller
8th Cir. · 1989 · confidence medium
In United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), and more recently in United States v. Barnerd, 887 F.2d 841, 842 (8th Cir.1989), panels of this Court considered and rejected this due process claim.
cited Cited as authority (rule) United States v. Delbert L. Lane
8th Cir. · 1989 · confidence medium
Lane’s argument has been rejected by this court in United States v. Nunley, 873 F.2d 182, 186 (8th Cir.1989), and United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989).
discussed Cited as authority (rule) United States v. Erves
11th Cir. · 1989 · confidence medium
E.g., United States v. Allen, 873 F.2d 963 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir.1989); United States v. White, 869 F.2d 822, 825 (5th Cir.1989); United States v. Frank, 864 F.2d 992, 1008-10 (3d Cir.1988).
discussed Cited as authority (rule) United States v. Joe Jeffrey Erves, Gerald Wayne Drew, Gerry Lewayne Terrell, Donald J. Richardson, United States of America v. Andrew Villarreal-Farias
11th Cir. · 1989 · confidence medium
E.g., United States v. Allen, 873 F.2d 963 (6th Cir.1989); United States v. Seluk, 873 F.2d 15, 16 (1st Cir.1989); United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir.1989); United States v. White, 869 F.2d 822, 825 (5th Cir.1989); United States v. Frank, 864 F.2d 992, 1008-10 (3d Cir.1988). 11 As to procedural due process, "only minimal due process protections" are required at sentencing.
discussed Cited as authority (rule) United States v. Roger Justice
8th Cir. · 1989 · confidence medium
In United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), a panel of this court noted that [ujnder the Guidelines, sentencing judges retain discretion to accept or reject a plea bargain, to resolve factual disputes about the appropriate base offense level, to consider adjusting that base level for mitigating and aggravating circumstances, to choose from a range of sentences, to set probation conditions, and to determine when to depart from the Guidelines.
discussed Cited "see" United States v. Booker, Charles (2×)
D.C. Cir. · 2006 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827, 829 (8th Cir.1989) (noting "of course . . . the two-track [sentencing] procedure [will not] be appropriate in the future"). 20 Under the Guidelines, a sentencing judge had no reason to impose "alternative sentences." It is therefore unsurprising that neither we nor the parties could find guidance on "alternative sentences" in the pre- Blakely caselaw or treatises.
discussed Cited "see" United States v. Louis H. Martin (2×)
6th Cir. · 1990 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827, 829 (8th Cir.1989) ("We believe the District Court acted prudently in using this two-track procedure."), approving the District Judge's reasoning in Brittman as follows: 46 Of course, the sentence which will be entered on the Judgment and Commitment form will be the [pre-guidelines sentence] only, because that will be the only lawful sentence under the opinion of the Court.
discussed Cited "see" United States v. Alvin E. Johnson (2×)
8th Cir. · 1990 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827, 828-29 (8th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989) (rejecting facial challenge but noting that due process may prohibit certain applications of the Act).
cited Cited "see" United States v. Terry Draper
6th Cir. · 1989 · signal: see · confidence high
See United States v. Brittman, 687 F.Supp. 1329 (E.D.Ark.1988), modified, 872 F.2d 827 (8th Cir.1989).
cited Cited "see" United States v. Jerry Sciacca, Sr.
8th Cir. · 1989 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827 (8th Cir.1989) (powers retained by district judges in sentencing); United States v. Nunley, 873 F.2d 182 (8th Cir.1989).
discussed Cited "see" United States v. Timothy Scott Allen (2×)
6th Cir. · 1989 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827 (8th Cir.1989); United States v. White, 869 F.2d 822 (5th Cir.1989) (per curiam); United States v. Vizcaino, 870 F.2d 52 (2d Cir.1989); Frank, 864 F.2d at 1008-10 .
cited Cited "see" United States v. William Ruiz-Vargas A/K/A William Ruiz A/K/A Willie Ruiz
8th Cir. · 1989 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827 (8th Cir.1989).
cited Cited "see" United States v. James Lester Valiant A/K/A Lester J. Valiant
8th Cir. · 1989 · signal: see · confidence high
See United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989).
discussed Cited "see, e.g." United States v. Patrick Harm Keene
8th Cir. · 1990 · signal: see also · confidence medium
United States v. Justice, 877 F.2d 664, 666 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 375 , 107 L.Ed.2d 360 (1989); see also United States v. Brittman, 872 F.2d 827, 828 (8th Cir.) (sentencing judges retain discretion to consider adjusting the base level for mitigating or aggravating circumstances under the guidelines), cert. denied, — U.S. -, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
cited Cited "see, e.g." United States v. Carl Weaver, A/K/A \Ck\"
unknown court · 1990 · signal: see, e.g. · confidence medium
See, e.g., United States v. Brittman, 872 F.2d 827, 828 (8th Cir.), cert. denied, — U.S. -, 110 S.Ct. 184 , 107 L.Ed.2d 140 (1989).
discussed Cited "see, e.g." United States v. Paul Stein
6th Cir. · 1990 · signal: see also · confidence medium
United States v. Allen, 873 F.2d 963 (6th Cir.1989) (upholding the Guidelines against a similar due process challenge); see also United States v. Brittman, 872 F.2d 827, 828 (8th Cir.1989), cert. denied, 110 S.Ct 154 (1989) (same). 11 Second, Stein attacks the two-track sentencing procedure as violative of his due process rights.
discussed Cited "see, e.g." United States v. Duane Edward Nolder (2×)
8th Cir. · 1989 · signal: see also · confidence low
See also United States v. Brittman, 872 F.2d 827 (8th Cir.1989). 7 Nolder next argues, and the government agrees, that the Criminal Livelihood guideline does not apply to his case.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Eric BRITTMAN, Appellant; UNITED STATES of America, Appellant, v. Eric BRITTMAN, Appellee
88-1895, 88-1973.
Court of Appeals for the Eighth Circuit.
Jun 9, 1989.
872 F.2d 827
Robert E. Adcock, Little Rock, Ark., for appellant., Robert L. Neighbors, Little Rock, Ark., and Karen Skrivseth, Washington, D.C., for appellee.
Arnold, Fagg, Wollman.
Cited by 90 opinions  |  Published
ARNOLD, Circuit Judge.

Eric Brittman was convicted by a jury of robbing the East Branch of the First Commercial Bank, N.A., of Little Rock, Arkansas. The jury found that in the course of the robbery Brittman placed in jeopardy the life of another person by the use of a handgun, thereby finding Brittman guilty of a violation of 18 U.S.C. § 2113(d).

The crime was committed on November 16,1987, 15 days after the effective date of[*828] new Sentencing Guidelines issued by the United States Sentencing Commission under the authority of the Sentencing Reform Act of 1984, enacted by Congress as Chapter II of the Comprehensive Crime Control Act of 1984, Pub.L. No. 98-473, Tit. II, 98 Stat. 1837, 1987 et seq., 28 U.S.C. (Supp. IV) §§ 991 et seq.

The District Court found the Sentencing Guidelines unconstitutional. United States v. Brittman, 687 F.Supp. 1329 (E.D.Ark.1988). In a detailed and scholarly opinion, the Court found that the Guidelines were an unconstitutional delegation of legislative power, a violation of separation-of-powers principles, and a deprivation of liberty without due process of law.

In No. 88-1895, the main appeal, the defendant argues that the conviction should be reversed. We have already rejected his arguments and entered an order affirming the conviction. United States v. Brittman, No. 88-1895, 871 F.2d 1093 (8th Cir. Nov. 25, 1988) (per curiam) (unpublished opinion).

In No. 88-1973, the government contests the sentence. The District Court, having held the Sentencing Guidelines unconstitutional, as noted above, sentenced Brittman to ten years’ imprisonment plus a $50 assessment under 18 U.S.C. § 3013. Insofar as the District Court’s rejection of the Guidelines was based on delegation or separation-of-powers principles, it has now been superseded by the Supreme Court's opinion in Mistretta v. United States, — U.S. -, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).

The Supreme Court did not directly confront the due-process attack on the Guidelines, [1] but we disagree with the District Court’s conclusion that the Guidelines violate the Due Process Clause because they eliminate judges’ sentencing discretion. We hold that the Guidelines are not vulnerable to this sort of due-process challenge. Under the Guidelines, sentencing judges retain discretion to accept or reject a plea bargain, to resolve factual disputes about the appropriate base offense level, to consider adjusting that base level for mitigating and aggravating circumstances, to choose from a range of sentences, to set probation conditions, and to determine when to depart from the Guidelines. Thus, some discretion, some power to fit sentences to the individual offender, is left. But in any event the Constitution does not guarantee individualized sentencing, except in capital cases. See, e.g., Lockett v. Ohio, 438 U.S. 586, 603-05, 98 S.Ct. 2954, 2964-65, 57 L.Ed.2d 973 (1978) (plurality); United States v. Vizcaino, 870 F.2d 52, 54-56 (2d Cir.1989), (rejecting facial due-process attack on Guidelines); United States v. Frank, 864 F.2d 992, 1009-10 (3d Cir.1988) (same). Even mandatory terms of imprisonment have been upheld. See, e.g., United States v. Goodface, 835 F.2d 1233, 1236 (8th Cir.1987). Federal judges have long been used to individualized sentencing, and many judges prefer it, but whether, and to what extent, to continue or modify this system is a matter of legislative prerogative. Moreover, Congress could reasonably think that enactment of the Guidelines will help eliminate a different sort of potential due-process problem — that of arbitrary or disparate sentencing.

We therefore hold that the Sentencing Guidelines are not facially unconstitutional for any of the reasons given in the District Court’s opinion. This holding does not foreclose due-process challenges to the Guidelines as applied in individual cases— for example, that they are being applied without giving defendants an appropriate opportunity to contest the facts bearing upon the various predicate factors that the Guidelines make relevant to sentencing. No such questions are before us in the present case, and we express no view on them.

Accordingly, on the Government’s cross-appeal the sentence imposed by the District Court is vacated, and the cause will be[*829] remanded to that Court for resentencing in accordance with the Guidelines.

All of the judges of the District Court for the Eastern District of Arkansas, sensitive to the controversial legal issues raised by the Guidelines, have adopted a “two-track” approach to sentencing those found guilty of crimes committed since the Guidelines’ effective date. Defendants have been formally sentenced under whichever regime (either the Guidelines or the pre-Guidelines system) each individual judge believed to be lawful. But the sentencing judge has in each case also announced what sentence he or she would have imposed under the other system. In Brittman’s case, for example, the District Court, in addition to the formal sentence of ten years imposed under the pre-Guidelines system, also filed a Statement of Reasons for Imposing Sentence, as required by the Sentencing Reform Act. In this Statement the Court explained that if the Guidelines were applicable it would have imposed a sentence of 21 years and ten months, plus a period of supervised release.

We believe the District Court acted prudently in using this two-track procedure. As the Court observed, “if the Guidelines and the Commission are held constitutional, only a new commitment order will have to be executed.” Designated Clerk’s Record 8. It will not be necessary to have a second sentencing hearing. Nor, of course, will the two-track procedure be appropriate in the future.

The judgment of conviction is affirmed. The sentence is vacated, and the cause remanded to the District Court for resen-tencing in accordance with this opinion.

It is so ordered.

1

. One remark in the Court’s opinion, however, indicates an unfavorable reaction to such a challenge: ”[T]he scope of judicial discretion with respect to a sentence is subject to congressional control. Ex parte United States, 242 U.S. 27 [37 S.Ct. 72, 61 L.Ed. 129] (1916).” Mistretta, 109 S.Ct. at 650 (dictum).