United States v. John Hamby, Jr. , 466 F. App'x 202 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4721
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN LOCKE HAMBY, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Abingdon. James P. Jones, District
Judge. (1:10-cr-00035-JPJ-PMS-1)
Submitted: February 16, 2012 Decided: February 22, 2012
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant. Timothy J. Heaphy, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Lucas E. Beirne, Third
Year Law Intern, Charlottesville, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Locke Hamby, Jr., appeals from the 324-month
sentence imposed for his conviction of receipt of visual
depictions of a minor engaged in sexually explicit conduct in
violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (2006). On appeal,
he raises two issues: (1) whether the district court abused its
discretion by rejecting his contention that a fifteen-year
sentence was sufficient because his age had reduced his
likelihood of reoffending; and (2) whether the district court’s
sentencing enhancement under U.S. Sentencing Guidelines Manual
(“USSG”) § 2G2.2(b)(7)(D) (2010) was invalid because the
enhancement was promulgated directly by Congress and therefore
contrary to Mistretta v. United States, 488 U.S. 361 (1989).
For the reasons that follow, we affirm.
We find no abuse of discretion in the district court’s
rejection of Hamby’s contention that his age would significantly
reduce his likelihood of reoffending, such that he only needed a
fifteen-year sentence. Gall v. United States, 552 U.S. 38, 49
(2007) (stating review standard); United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (same). Moreover, we note that
Hamby’s 324-month sentence was within his properly-calculated
advisory sentencing range of 324-405 months and is therefore
entitled to an appellate presumption of reasonableness. Rita v.
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United States, 551 U.S. 338, 347 (2007); United States v. Abu
Ali, 528 F.3d 210, 261 (4th Cir. 2008).
Next, we note that USSG § 2G2.2(b)(7)(D) increases a
defendant’s base offense level by five if the offense involved
600 or more images. That Congress, rather than the Sentencing
Commission, promulgated this enhancement is without moment.
Contrary to Hamby’s arguments, Mistretta does not assist him.
Mistretta considered whether Congress’ delegation to an
independent Federal Sentencing Commission of the authority to
promulgate the Sentencing Guidelines violated the separation-of-
powers doctrine; the Court held that it did not. Mistretta, 488
U.S. at 371. Rather, Mistretta states that “the Commission is
fully accountable to Congress, which can revoke or amend any or
all of the Guidelines as it sees fit.” Id. at 393-94. The
Seventh and Eight Circuits have specifically rejected Hamby’s
argument. United States v. Rodgers, 610 F.3d 975, 977-78 (7th
Cir. 2010); United States v. Bastian, 603 F.3d 460, 464-65 (8th
Cir. 2010).
Accordingly, we affirm Hamby’s sentence. We dispense
with oral argument as the facts and legal contentions are
adequately addressed in the materials before this court and
argument would not aid the decisional process.
AFFIRMED
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