                                                               [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT           FILED
                      ________________________ U.S. COURT OF APPEALS
                                                               ELEVENTH CIRCUIT
                             No. 11-12147                       DECEMBER 7, 2011
                         Non-Argument Calendar                     JOHN LEY
                       ________________________                     CLERK


                  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
                      ________________________

                           (December 7, 2011)

Before MARCUS, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      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).

                                         2
      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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