decisions. Charging decisions are primarily a matter of discretion for the prosecution, the representatives of the executive branch of government, who “are not mere servants of the judiciary.” Miller, 722 F.2d at 565. Case law clearly establishes that separation of powers mandates the judiciary remain independent of executive affairs and vice versa. See Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668-69, 54 L.Ed.2d 604 (1978); United States v. Cox, 342 F.2d 167, 171 (5th Cir.), cert. denied, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed.2d 700 (1965). This principle is also established by the Federal Rules of Criminal Procedure. Though charging decisions implicate executive power, they also implicate the sentencing discretion of district courts. See Carrigan, 778 F.2d at 1464 (<HOLDING>). However, the court’s sentencing discretion is
holding that the mere mandatory application of the guidelines  the district courts belief that it was required to impose a guidelines sentence  constitutes error holding that when a sentencing issue centers upon a courts statutory authority to impose a sentence rather than the courts exercise of discretion in fashioning the sentence the issue raised implicates the legality of the sentence imposed holding that the court could in its discretion consider the fact that the defendant was arrested while on bail awaiting trial in determining what sentence to impose even though the arrest did not result in an indictment of the defendant recognizing in dicta that charging decisions restrict the district courts ability to impose what it considered an appropriate sentence recognizing district courts discretion to consider pending state charge in determining sentence