Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
6-6-2007
USA v. Dinges
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1334
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"USA v. Dinges" (2007). 2007 Decisions. Paper 1002.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 06-1334 and 06-1335
___________
UNITED STATES OF AMERICA
v.
TODD CHRISTOPHER DINGES,
Appellant
___________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Nos. 03-cr-00275-1 and 03-cr-00276-1)
District Judge: The Honorable Terrence F. McVerry
___________
Submitted Under Third Circuit LAR 34.1(a)
May 16, 2007
BEFORE: FISHER, NYGAARD, and ROTH, Circuit Judges.
(Filed June 6, 2007 )
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Todd Dinges pleaded guilty to possessing pornography depicting minors engaged
in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(4)(B), and to mail fraud
in violation of 18 U.S.C. § 1341. The District Court sentenced him to forty-eight months’
imprisonment as to the child pornography charge, and to forty-eight months on the mail
fraud charge, to be served concurrently. The sentences of imprisonment are to be
followed by concurrent three-year periods of supervised release.
Dinges raises two arguments on appeal. First, he argues that United States
Sentencing Guideline § 2G2.4 violates the separation of powers doctrine. Second, Dinges
maintains the District Court erred in granting an upward departure on the basis of his
criminal history. We find both claims meritless.
As he did in the District Court, Dinges argues that, in authorizing a change in the
method in which United States Sentencing Commission members are appointed, Congress
violated the separation of powers doctrine. Specifically, he argues that the entire
Sentencing Guidelines system is unconstitutional because the Feeney Amendment allows
the President to appoint to the Sentencing Commission only members of the Executive
Branch. Dinges maintains that this violates our constitutionally mandated separation of
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powers because it places control over indictment, prosecution, and sentencing in the
hands of the Executive Branch. We reject this argument because the Sentencing
Guidelines are now advisory instead of mandatory. Regardless, the District Court here
specifically recognized that it had the authority to reject the application of U.S.S.G. §
2G2.4, but declined to do so.
Next, Dinges argues the District Court erred by granting the Government’s request
for an upward departure based on his criminal history. The Government sought an
upward departure pursuant to U.S.S.G. § 4A1.3, which advises that an upward departure
may be warranted when “reliable information indicates that the defendant's criminal
history category substantially under-represents the seriousness of the defendant's criminal
history or the likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3.1
Initially, Dinges' criminal history category was III. The Government argued that
Dinges’ prior criminal history was not adequately reflected in the guideline calculation
and moved for an upward departure. The District Court agreed. The District Court
pointed to Dinges’ eighteen prior convictions in three separate Pennsylvania counties as
well as thirty-seven summary convictions before Pennsylvania district justices, all for
check fraud, forgery and/or receiving stolen property. The District Court also determined
that Dinges’ criminal history calculation did not reflect multiple occasions in which
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Even under the mandatory sentencing guideline regime, this departure was within
the sentencing court's discretion, as evidenced by the language “may be warranted.”
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Dinges was found to be in possession of child pornography, including instances after
Dinges was indicted. The District Court determined that, given these findings, Dinges’
criminal history was “grossly under-represented.” We see no basis for disturbing these
findings.
Given this history, and the fact that Dinges was found in possession of child
pornography even after being indicted for possession of such abhorrent media, the
District Court determined that it was extremely likely that Dinges would commit future
crimes. Accordingly, the District Court exercised its discretion and increased the criminal
category. Given our deferential review of the court's sentence, and the record's support for
the enhancement, we conclude that the resulting sentence was reasonable.
For all of the above reasons, we will affirm the District Court's judgment of
sentence and conviction.
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