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United States v. Kiefer

United States Court of Appeals, Ninth Circuit

July 24, 2014

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
MARK ROBERT KIEFER, Defendant-Appellant

Argued and Submitted, Pasadena, California: May 15, 2014.

Page 927

Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-03038-JM-1. Jeffrey T. Miller, Senior District Judge, Presiding.

Criminal Law

The panel affirmed a sentence imposed following the defendant's guilty plea to receiving child pornography in violation of 18 U.S.C. § 2252.

The panel held that U.S.S.G. § 2G2.2 neither violates the separation of powers doctrine nor conflicts with 18 U.S.C. § 3553. The panel held that the district court's application of a two-level enhancement for the use of a computer under U.S.S.G. § 2G2.2(b)(6) does not result in impermissible double counting. The panel concluded that because the district court properly applied § 2G2.2, the defendant lacks standing to challenge the constitutionality of the five-year mandatory minimum codified at 18 U.S.C. § 2252(b)(1), as it did not affect his sentence.

Ezekiel E. Cortez, San Diego, California, for Defendant-Appellant.

Anne Kristina Perry (argued), Assistant United States Attorney, Laura E. Duffy, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, United States Attorney's Office, San Diego, California, for Plaintiff-Appellee.

Before: Harry Pregerson, Stephen Reinhardt, and Jacqueline H. Nguyen, Circuit Judges. Opinion by Judge Nguyen.

OPINION

Page 928

NGUYEN, Circuit Judge:

Sentencing in child pornography cases can be controversial.[1] In this case, however, it is not. Mark Robert Kiefer was indicted and, pursuant to a plea agreement, pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252. Under the plea agreement, Kiefer reserved the right to appeal the constitutionality of § 2G2.2 of the United States Sentencing Guidelines (" U.S.S.G." ) and the five-year mandatory minimum sentence codified at 18 U.S.C. § 2252(b)(1). The district court sentenced Kiefer to sixty-three months imprisonment pursuant to § 2G2.2 and 18 U.S.C. § 3553.

We conclude that § 2G2.2 neither violates the separation of powers doctrine nor conflicts with § 3553. Further, we hold that the district court's application of a two-level enhancement for the use of a computer under § 2G2.2(b)(6) does not result in impermissible double counting. In so holding, we join a number of our sister circuits that have addressed this question and unanimously reached the same conclusion. Finally, because the district court properly applied § 2G2.2, Kiefer lacks standing to challenge the constitutionality of the five-year mandatory minimum as it did not affect his sentence. We affirm.

BACKGROUND

A

On July 14, 2011, a grand jury returned a five-count indictment charging Kiefer with four counts of receiving child pornography in violation of 18 U.S.C. § 2252(a)(2) and one count of possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). On March 1, 2012, Kiefer and the government entered into a written, conditional plea agreement. Kiefer agreed to plead guilty to one count of receiving child pornography in violation of § 2252(a)(2). But Kiefer entered into the plea agreement " with the express purpose of reviewing on appeal the constitutionality" both of the five-year mandatory minimum sentence under 18 U.S.C. § 2252(b)(1) and of U.S.S.G. § 2G2.2.

On February 5, 2013, Kiefer filed a motion challenging the constitutionality of the mandatory minimum sentence and ยง 2G2.2. On April 19, 2013, the ...


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