USA v. Mark Kiefer

Filing

FILED OPINION (HARRY PREGERSON, STEPHEN R. REINHARDT and JACQUELINE H. NGUYEN) AFFIRMED. Judge: JHN Authoring. FILED AND ENTERED JUDGMENT. [9179988]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 13-50182

v.

D.C. No.
3:11-cr-03038-JM-1

MARK ROBERT KIEFER,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, Senior District Judge, Presiding
Argued and Submitted
May 15, 2014—Pasadena, California
Filed July 24, 2014
Before: Harry Pregerson, Stephen Reinhardt,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Nguyen

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UNITED STATES V. KIEFER
SUMMARY*

Criminal Law
The panel affirmed a sentence imposed following the
defendant’s guilty plea to receiving child pornography in
violation of 18 U.S.C. § 2252.
The panel held that U.S.S.G. § 2G2.2 neither violates the
separation of powers doctrine nor conflicts with 18 U.S.C.
§ 3553. The panel held that the district court’s application of
a two-level enhancement for the use of a computer under
U.S.S.G. § 2G2.2(b)(6) does not result in impermissible
double counting. The panel concluded that because the
district court properly applied § 2G2.2, the defendant lacks
standing to challenge the constitutionality of the five-year
mandatory minimum codified at 18 U.S.C. § 2252(b)(1), as
it did not affect his sentence.

COUNSEL
Ezekiel E. Cortez, San Diego, California, for DefendantAppellant.
Anne Kristina Perry (argued), Assistant United States
Attorney, Laura E. Duffy, United States Attorney, Bruce R.
Castetter, Assistant United States Attorney, United States
Attorney’s Office, San Diego, California, for PlaintiffAppellee.
*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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UNITED STATES V. KIEFER

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OPINION
NGUYEN, Circuit Judge:
Sentencing in child pornography cases can be
controversial.1 In this case, however, it is not. Mark Robert
Kiefer was indicted and, pursuant to a plea agreement,
pleaded guilty to one count of receiving child pornography in
violation of 18 U.S.C. § 2252. Under the plea agreement,
Kiefer reserved the right to appeal the constitutionality of
§ 2G2.2 of the United States Sentencing Guidelines
(“U.S.S.G.”) and the five-year mandatory minimum sentence
codified at 18 U.S.C. § 2252(b)(1). The district court
sentenced Kiefer to sixty-three months imprisonment
pursuant to § 2G2.2 and 18 U.S.C. § 3553.
We conclude that § 2G2.2 neither violates the separation
of powers doctrine nor conflicts with § 3553. Further, we
hold that the district court’s application of a two-level
enhancement for the use of a computer under § 2G2.2(b)(6)
does not result in impermissible double counting. In so
holding, we join a number of our sister circuits that have
addressed this question and unanimously reached the same
conclusion. Finally, because the district court properly
applied § 2G2.2, Kiefer lacks standing to challenge the
constitutionality of the five-year mandatory minimum as it
did not affect his sentence. We affirm.

1

See, e.g., Melissa Hamilton, Sentencing Adjudication: Lessons from
Child Pornography Policy Nullification, 30 Ga. St. U. L. Rev. 375, 387
(2014); United States v. Henderson, 649 F.3d 955, 964–66 (9th Cir. 2011)
(Berzon, J., concurring).

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UNITED STATES V. KIEFER
BACKGROUND
A

On July 14, 2011, a grand jury returned a five-count
indictment charging Kiefer with four counts of receiving
child pornography in violation of 18 U.S.C. § 2252(a)(2) and
one count of possessing child pornography in violation of
18 U.S.C. § 2252(a)(4)(B). On March 1, 2012, Kiefer and the
government entered into a written, conditional plea
agreement. Kiefer agreed to plead guilty to one count of
receiving child pornography in violation of § 2252(a)(2). But
Kiefer entered into the plea agreement “with the express
purpose of reviewing on appeal the constitutionality” both of
the five-year mandatory minimum sentence under 18 U.S.C.
§ 2252(b)(1) and of U.S.S.G. § 2G2.2.
On February 5, 2013, Kiefer filed a motion challenging
the constitutionality of the mandatory minimum sentence and
§ 2G2.2. On April 19, 2013, the district court denied the
motion. The district court concluded that Kiefer lacked
standing to challenge the five-year mandatory minimum
because his sentence was “unaffected” by the statutory
mandatory minimum.
On the same date, the district court sentenced
Kiefer—pursuant to § 2G2.2 and 18 U.S.C. § 3553—to
sixty-three months imprisonment, a seven-year period of
supervised release, and a $100 special assessment. On April
24, 2013, the district court entered judgment. Kiefer timely
appealed.

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B
In sentencing Kiefer, the district court calculated the
sentencing range under the Sentencing Guidelines as follows:
Base Offense
Level:

22 (under § 2G2.2(a)(2))

Specific Offense
Characteristics:

+2 (under § 2G2.2(b)(2), for
materials involving prepubescent
minors and minors under the age
of twelve);
+4 (under § 2G2.2(b)(4), for
materials portraying sadistic or
masochistic conduct or other
depictions of violence);
+2 (under § 2G2.2(b)(6), for the use
of a computer); and
+5 (under § 2G2.2(b)(7)(D), for an
offense involving more than 600
images).2

After applying a three-level downward adjustment under
§ 3E1.1 for acceptance of responsibility, the court calculated
a Total Offense Level of 32, and a sentencing range of
between 121 and 151 months (i.e., between 10 and 13 years).

2

On this appeal, Kiefer does not challenge the five-level enhancement
under § 2G2.2(b)(7)(D).

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Sua sponte, the district court then applied a six-level
downward departure pursuant to 18 U.S.C. § 3553, resulting
in a Total Offense Level of 26 and a Sentencing Guidelines
range of between 63 and 78 months. Essentially, the district
court “reduc[ed] the advisory guideline range by almost 50
percent” and then sentenced Kiefer to the low-end:
sixty-three months imprisonment.
JURISDICTION
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. This Court has jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
STANDARDS OF REVIEW
“We review questions of standing de novo.” Douglas
County v. Babbitt, 48 F.3d 1495, 1499 (9th Cir. 1995).
Likewise, “[w]e review the constitutionality of a Sentencing
Guideline de novo.” United States v. Ellsworth, 456 F.3d
1146, 1149 (9th Cir. 2006). “We review the district court’s
interpretation of the Sentencing Guidelines de novo and its
factual findings for clear error.” United States v. Tanke,
743 F.3d 1296, 1306 (9th Cir. 2014).
DISCUSSION
I
Because the district court sentenced Kiefer pursuant to
§ 2G2.2, he has standing to challenge the constitutionality of
this section. However, we can quickly dispose of his
arguments on appeal.

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First, Kiefer argues broadly that § 2G2.2 violates the
separation of powers doctrine.3 In Mistretta v. United States,
the United States Supreme Court rejected an analogous
challenge. See 488 U.S. 361, 380–84 (1989) (dismissing
argument as “more smoke than fire”). In addition, the
Supreme Court later held that the Sentencing Guidelines are
advisory only. United States v. Booker, 543 U.S. 220, 233
(2005) (“We have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within a
statutory range.”); see also Rita v. United States, 551 U.S.
338, 350 (2007) (“The Commission’s work is ongoing. The
statutes and the Guidelines themselves foresee continuous
evolution helped by the sentencing courts and courts of
appeals in that process. . . . [The Commission] may obtain
advice from prosecutors, defenders, law enforcement groups,
civil liberties associations, experts in penology, and others.
And it can revise the Guidelines accordingly.”); United States
v. Davis, 739 F.3d 1222, 1225 (9th Cir. 2014) (“[A]s a
doctrinal matter the Supreme Court rejected a separation of
powers challenge to the Commission’s structure and authority
in [Mistretta] . . . .”).
Second, Kiefer argues that § 2G2.2 is inconsistent with
18 U.S.C. § 3553. This challenge also fails. As a preliminary
matter, § 3553 is a federal statute and not a constitutional
provision. Regardless, the district court here sua sponte
applied a six-level downward departure in consideration of
the factors set forth in § 3553. As applied to Kiefer’s
sentence, § 2G2.2 in no way conflicts with § 3553.

3

While styled as an “as applied” challenge, Kiefer’s constitutional
arguments are largely facial in nature; indeed, they are not even
necessarily limited to § 2G2.2 but instead attack the U.S.S.G. generally.

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II

Importantly, Kiefer concedes that he was not sentenced
pursuant to the five-year mandatory minimum under
§ 2252(b)(1). Consequently, he acknowledges that he has
standing to challenge the statutory mandatory minimum only
if the district court erred in its application of § 2G2.2.
According to Kiefer, if the court properly had calculated the
applicable Sentencing Guidelines range, he would have faced
a sentencing range below the mandatory minimum. Thus, we
now turn to the district court’s application of § 2G2.2 to the
undisputed facts.4
A
Kiefer argues that the two-level enhancement for the use
of a computer under § 2G2.2(b)(6) results in impermissible
double counting.5 Kiefer points out that the statute under
which he was convicted, § 2252(a)(2), criminalizes the
knowing receipt of child pornography “using any means or
facility of interstate or foreign commerce or that has been
mailed, or has been shipped or transported in or affecting
interstate or foreign commerce, or which contains materials
which have been mailed or so shipped or transported, by any
means including by computer.” 18 U.S.C. § 2252(a)(2)
4

“There is an intracircuit split as to whether the standard of review for
application of the Guidelines to the facts is de novo or abuse of discretion.
There is no need to resolve this split where, as here, the choice of the
standard does not affect the outcome of the case.” Tanke, 743 F.3d at
1306 (citations omitted).
5

The district court considered the notion that the “use-of-a-computer
enhancement in this case is suggestive of double counting” in sua sponte
applying the six-level downward departure under § 3553.

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(emphasis added). Kiefer admits that the statute prohibits the
receipt of child pornography through means other than the
use of a computer but contends that those other means are not
subject to an enhancement under § 2G2.2(b)(6).
This argument has been roundly rejected by our sister
circuits. As the Second Circuit observed in United States v.
Reingold, “the use of a computer is not essential to the act of
distributing child pornography. A person can traffic in child
pornography without using a computer much like one could
commit a robbery without the use of a gun.” 731 F.3d 204,
226 (2d Cir. 2013) (citation and internal quotation marks
omitted). Therefore, the application of § 2G2.2(b)(6) does
not result in impermissible double counting because the
increase in a defendant’s sentence for use of a computer
accounts for harm that is not fully reflected in the base
offense level.
Again, we find the reasoning of the Second Circuit
persuasive:
[T]he digital revolution, which may be
responsible for more child pornography
crimes’ being committed by computer, has
aggravated rather than mitigated the harms
associated with such crime. By making it
easier to retrieve and distribute child
pornography, computers have expanded the
market for child pornography, which in turn
fuels a greater demand for a product that can
only be produced by abusing and exploiting
children. Moreover, once child pornography
is circulated by computer, it becomes almost
impossible to remove or destroy. In such

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circumstances, it was hardly unreasonable,
much less double counting, for the Sentencing
Commission to conclude that the base offense
level applicable to all distributors of child
pornography—even those who share items
non-electronically—should be enhanced for
persons who commit the crime by using a
computer.

Id. (citations omitted).6
Every other circuit court to have addressed this question
has reached the same conclusion. See United States v.
Richardson, 713 F.3d 232, 237 (5th Cir. 2013) (“[T]he
statutory language ‘including by computer’ does not require
computer use to violate the statute: using a computer is just
one example of a manner in which child pornography can be
transmitted, and [the defendant] would have violated the
statute had he transported child pornography ‘by any means’
affecting interstate commerce.”); United States v. Lewis,

6

But see id. (“[T]his court has expressed reservations about the
§ 2G2.2(b)(6) enhancement because, now that so many child pornography
crimes are committed by computer, the enhancement applies in virtually
every case so as to have the flavor of double counting.” (internal quotation
marks omitted)); Henderson, 649 F.3d 955, 965 (Berzon, J., concurring)
(“[A]n unduly deferential application of § 2G2.2 will lead to the vast
majority of offenders being sentenced to near the maximum statutory
term. Because of the history of Congressional involvement, the base
offense level for possession of child pornography is already a relatively
high 18 (compared to 10 for the same offense in 1991). Enhancements for
the use of a computer, depictions of prepubescent minors, portrayal of
sadistic or masochistic conduct and the involvement of over 600
images—all of which apply in a majority of cases and some of which
apply in more than 90% of them—add up to create an effective base
offense level of 31.”).

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605 F.3d 395, 403 (6th Cir. 2010) (“The fact that the statute
articulates computer use as one means of transporting the
proscribed depictions does not mean that use of a computer
is a required element of the crime. . . . [T]he U.S.S.G.
§ 2G2.2(b)(6) enhancement for using a computer aims at
punishing a distinct harm beyond the mere transmission of
child pornography.”); United States v. Tenuto, 593 F.3d 695,
698 (7th Cir. 2010) (“To violate the statute, it was not
necessary that he use a computer. He could have chosen to
mail or fax the material; he could have carried it on a train or
simply walked it across state lines.” (citation omitted)); see
also United States v. Artello, --- F. App’x ---, 2014 WL
1316304, at *4 (11th Cir. Apr. 3, 2014); United States v.
Ballard, 448 F. App’x 987, 989–90 (11th Cir. Dec. 15, 2011);
United States v. Miller, 318 F. App’x 701, 703 (10th Cir. Apr.
1, 2009).
Today, we follow our sister circuits in holding that the
application of the two-level enhancement for the use of a
computer under § 2G2.2(b)(6) does not result in double
counting. As such, in Kiefer’s case, the district court
properly applied this enhancement.
B
Similarly, Kiefer next argues that the district court’s
application of two additional enhancements—§ 2G2.2(b)(2)
for materials involving prepubescent minors and minors
under the age of twelve, and § 2G2.2(b)(4) for materials
portraying sadistic or masochistic conduct or other depictions
of violence—results in double punishment. We disagree.
Kiefer conjoins two distinct findings, two distinct harms,
and two distinct enhancements. First, with respect to the

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application of § 2G2.2(b)(2), the district court found that
“some of the images . . . indisputably and unassailably show
girls much less than 12 years of age.” Second, with respect
to the application of § 2G2.2(b)(4), the court made the
following finding: “[T]hese images are amongst the most
heinous and disturbing that I’ve seen as a judge, and I’ve
handled many of these cases . . . . I think it is appropriate for
these horrific images to be distinguished from images of
minors merely depicted as naked.” In sum, the district court
applied one enhancement based on the age of the victims and,
properly, a second enhancement based on the depiction of
violence.
We already have rejected this argument made in an
analogous context in United States v. Holt, 510 F.3d 1007
(9th Cir. 2007). In Holt, the defendant pleaded guilty to
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). Id. at 1009. The district court imposed the
four-level enhancement for sadistic or masochistic conduct
pursuant to § 2G2.2(b)(4) and a two-level enhancement for a
vulnerable victim pursuant to § 3A1.1(b). Id. at 1010. The
victim depicted was a “very young child,” a “two- or
three-year-old.” Id. at 1011. The defendant argued that the
district court improperly “double counted” and applied these
enhancements for the same harm, “namely, the extreme pain
that necessarily would have been experienced by a very
young child depicted in the pornography.” Id. at 1011.
In rejecting the defendant’s argument, we stated:
Both the sadistic conduct and vulnerable
victim enhancements account for the pain
experienced by a young, small victim of child
pornography, but the enhancements also

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account for distinct characteristics of the
crime: the sadistic conduct enhancement
accounts for the pleasure necessarily
experienced by the perpetrator, while the
vulnerable victim enhancement accounts for
the inability of the victim to resist sexual
abuse.
Because the two enhancements
account for these distinct wrongs, it was
proper, and no abuse of discretion, for the
district court to apply both to the challenged
criminal conduct.
Id. at 1012.
Likewise, here, the district court’s application of the
challenged enhancements to Kiefer’s sentence did not result
in double counting because they account for two “distinct
wrongs.” While § 2G2.2(b)(2) seeks to account for the
particular harm to and vulnerability of young children under
the age of twelve, § 2G2.2(b)(4) recognizes that especially
egregious sexual abuse of the children depicted may warrant
greater punishment. Therefore, the district court properly
enhanced Kiefer’s sentence both for possessing images
involving children under twelve years old, and because these
images were “amongst the most heinous and egregious that
[he’s] ever seen” and must “be distinguished from images of
minors merely depicted as naked.”
C
Finally, because we conclude that the district court
properly applied § 2G2.2, Kiefer lacks standing to challenge
the constitutionality of the five-year mandatory minimum
sentence under 18 U.S.C. § 2252(b)(1). This is because, as

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the district court recognized, the statutory five-year
mandatory minimum had no effect on Kiefer’s sentence. See
United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir. 1989)
(“[The defendants], who were sentenced to eight and ten
years respectively, were not affected by the [five-year]
mandatory minimum provision of the statute. They lack
standing to challenge that aspect of [the statute].”).
AFFIRMED.

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