USA v. Octavio Alberto Calvo Gomez

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
DECEMBER 7, 2011
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12147
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-20697-JAL-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
OCTAVIO ALBERTO CALVO GOMEZ,
a.k.a. Octavio Alberto Calvo-Gomez,
llllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
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(December 7, 2011)
Before MARCUS, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:

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Octavio Alberto Calvo Gomez appeals his 60-month sentence imposed after
pleading guilty to possession of a visual depiction of a minor engaged in sexual
conduct in violation of 18 U.S.C. 2252(a)(4)(B). Gomez argues that the court erred
in applying the number-of-images enhancement, pursuant to U.S.S.G. §
2G2.2(b)(7)(A), because Congress’s enactment of that provision violated the
separation-of-powers doctrine. After thorough review, we affirm.
We review questions of law dealing with the Sentencing Guidelines de novo.
United States v. Kapordelis, 569 F.3d 1291, 1314 (11th Cir. 2009), cert. denied, 130
S.Ct. 1315 (2010). The Guideline at issue, U.S.S.G. § 2G2.2(b)(7)(A), derives from
the Protect Act, Pub.L.No. 108-21, § 401(i), 117 Stat. 650, 672-73 (2003), under
which Congress directly amended § 2G2.4(b) with increased offense levels
corresponding to the number of images possessed. Under section 2G2.2(b)(7)(A), a
defendant’s offense level is increased by 2 if he possessed between 10 and 150
images of child pornography.
The Sentencing Commission is established as an independent commission in
the U.S. judicial branch. 28 U.S.C. § 991(a). In Mistretta v. United States, the
Supreme Court held that Congress’s creation of the Commission, as well as the
inclusion of federal judges on the Commission, did not violate the Constitution’s
nondelegation and separation-of-powers doctrines. 488 U.S. 361, 412 (1989).
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Contrary to Gomez’s arguments, we agree with our sister circuits that
Congress’s creation of the enhancement in U.S.S.G. § 2G2.2(b)(7)(A) was
constitutional. See, e.g., United States v. Rodgers, 610 F.3d 975, 977-78 (7th Cir.
2010) (persuasive authority) (holding that Congress’s creation of the guideline
provision was constitutional because Congress retained the power to amend the
Sentencing Guidelines when it created the Sentencing Commission); United States
v. Bastian, 603 F.3d 460, 464-65 (8th Cir. 2010) (persuasive authority) (holding that,
under Mistretta, U.S.S.G. § 2G2.2(b)(7)(D) was created constitutionally). Indeed, in
determining that the Sentencing Commission was “an independent agency,” the
Supreme Court in Mistretta held that “the Commission is fully accountable to
Congress, which can revoke or amend any or all of the Guidelines as it sees fit.” 488
U.S. at 393-94; cf. United States v. Osburn, 955 F.2d 1500, 1504-05 (11th Cir. 1992)
(“Federal legislation mandating length of sentences does not violate the separation
of powers doctrine.”). Accordingly, we affirm.
AFFIRMED.
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