United States v. Steven Patrick Riffe , 406 F. App'x 341 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10330 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 16, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 7:09-cr-00273-CLS-HGD-1
UNITED STATES OF AMERICA,
lllllllllllllllllllll Plaintiff-Appellee,
versus
STEVEN PATRICK RIFFE,
lllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(December 16, 2010)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
Steven Patrick Riffe appeals the 168-month total sentence he received after
he pled guilty to one count of receiving child pornography, in violation of 18
U.S.C. § 2252A(a)(2)(A), one count of possession of child pornography, in
violation of § 2252A(a)(5)(B), and one count of criminal forfeiture, pursuant to
§ 2253(a)(1), (a)(3). Riffe asserts he should not have received a two-level
enhancement under U.S.S.G. § 2G2.2(b)(3)(F) because he was not convicted of
distribution of child pornography. He further contends his sentence is
procedurally and substantively unreasonable because the district court’s
explanation for his sentence was insufficient and the court failed to consider the
factors listed in 18 U.S.C. § 3553(a). Lastly, Riffe argues the “amount of images”
enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D), violates the separation of
powers doctrine. After review, we affirm Riffe’s sentence.
Prior to his sentencing hearing, Riffe filed a written objection to the pre-
sentence report specifically objecting to the legal conclusion that he had
distributed child pornography. He did not, however, object to the facts in the PSI
which showed he used Limewire, a peer-to-peer file-sharing program, to obtain
and store child pornography images on his computer. Therefore, it is undisputed
that Riffe obtained child pornography through the use of file-sharing software,
stored such pornography in his shared folder, and the police downloaded
2
pornography directly from that folder. We find no error in the district court’s
application of the § 2G2.2(b)(3)(F) distribution enhancement.
Additionally, we conclude Riffe's 168-month total sentence was both
procedurally and substantively reasonable. The district court correctly calculated
the advisory guideline range and stated the range was advisory. The court made
clear it had considered the § 3553(a) factors, and it emphasized the seriousness of
the offense and the need for specific deterrence. The court’s sentence of 168
months represented the lowest end of the applicable guideline range of 168-210
months, and we ordinarily expect such a sentence to be reasonable. See United
States v. Talley, 431 F.3d 784,788 (11th Cir. 2005).
Lastly, the district court did not commit plain error when it applied an
“amount of images” enhancement pursuant to U.S.S.G. § 2G2.2(b)(7)(D).
Although this Court nor the Supreme Court has previously addressed the
constitutionality of the enhancement, other circuits have upheld the statute’s
constitutionality. See, e.g., United States v. Rogers, 610 F.3d 975, 977-78 (7th
Cir. 2010); United States v. Bastian, 603 F.3d 460, 465 (8th Cir. 2010).
AFFIRMED.
3