United States v. Kiefer

Applying the mandatory minimum sentence for a child pornography conviction under U.S.S.G.§ 2G2.2 does not violate the separation of powers doctrine.

Mark Robert Kiefer pled guilty to one count of receiving child pornography. The sentence was calculated using the five-year mandatory minimum sentence under 18 U.S.C. § 2252 and U.S.S.G. § 2G2.2. Keifer appealed challenging the constitutionality of the mandatory minimum sentence and U.S.S.G. § 2G2.2 as a violation of the separation of powers. The Ninth Circuit denied Keifer’s argument and followed the ruling in Mistretta v. United States, which held that the Sentencing Guidelines are only advisory and the court has discretion when applying the guidelines. Keifer also argued that when the court enhanced the sentence because he received the images on his computer the court double counted the impact of the computer. Keifer argued that because he was already charged for receiving the images on his computer under U.S.C. § 2252(a)(2), his sentence cannot be extended by U.S.S.G § 2G2.2, because he received the images electronically. The panel found that the sentence enhancement was not double counting. Finally, because the district court properly applied the Sentencing Guideline, Kiefer lacked standing to bring his challenge. AFFIRMED.