United States v. John Hamby, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4721

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.

2
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