                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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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Recommended Citation
"USA v. Dinges" (2007). 2007 Decisions. Paper 1002.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1002


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                                               NOT PRECEDENTIAL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 )
                                       ___________

                               OPINION OF THE COURT
                                    ___________
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




       1
        Even under the mandatory sentencing guideline regime, this departure was within
the sentencing court's discretion, as evidenced by the language “may be warranted.”

                                              3
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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