                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 27 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-50250

              Plaintiff - Appellee,              D.C. No. 5:06-cr-00084-VAP-1

  v.
                                                 MEMORANDUM *
KIRK KARL DEWITT,

              Defendant - Appellant.



                   Appeal from the United States District Court
                       for the Central District of California
                   Virginia A. Phillips, District Judge, Presiding

                     Argued and Submitted December 8, 2010
                              Pasadena, California

Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.

       Kirk Karl Dewitt raises two constitutional challenges to his 120-month

sentence on his plea to possession of child pornography. Finding neither challenge

persuasive, we affirm his sentence.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Dewitt first challenges the district court’s consideration of investigative

and police reports without allowing for cross-examination of the authors of the

reports as violating his right to confrontation under Article VI of the Constitution.

The court reviews challenges to the constitutionality of the Sentencing Guidelines

de novo. United States v. Ellsworth, 456 F.3d 1146, 1149 (9th Cir. 2006).

Dewitt’s argument that he was denied his right to confront and cross-examine

witnesses as defined by the Supreme Court in Crawford v. Washington, 541 U.S.

36 (2004) fails because we have held that “the law on hearsay at sentencing is still

what it was before Crawford: hearsay is admissible at sentencing, so long as it is

accompanied by some minimal indicia of reliability.” United States v. Littlesun,

444 F.3d 1196, 1200 (9th Cir. 2006); see also United States v. Ingham, 486 F.3d

1068 (9th Cir. 2007). Dewitt’s challenge fails because a review of the record

reveals sufficient indicia of reliability for the challenged documents.

      2. Dewitt’s second constitutional challenge is that the district court erred in

considering the sentencing guideline that enhanced his sentence for possessing 600

images because the guideline was promulgated by the Sentencing Commission

pursuant to Congress’s specific direction, and thus, the guideline violated the

separation of powers doctrine. The argument is not well-taken. First, accepting

that the Commission promulgated the five-level enhancement pursuant to


                                           2
Congress’s explicit direction, this does not violate the separation of powers

doctrine because Congress has the power to fix the sentence for a federal crime and

the scope of judicial discretion with respect to a sentence. United States v.

Mistretta, 488 U.S. 361, 364 (1989). Second, following Mistretta, the Supreme

Court has held that the Sentencing Guidelines are advisory. United States v.

Booker, 543 U.S. 220 (2005). The Court has indicated that, when Congress

mandates the promulgation of a Guideline by the Commission, the sentencing court

may consider that fact in determining whether to depart from the advisory

guideline, but the Guideline is not unconstitutional. See Kimbrough v. United

States, 552 U.S. 85, 109-10 (2007); see also Rita v. United States, 551 U.S. 338,

350 (2007).

      For the forgoing reasons, Kirk Karl Dewitt’s sentence is AFFIRMED.




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