     Case: 10-30796 Document: 00511463240 Page: 1 Date Filed: 05/02/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                             May 2, 2011
                                     No. 10-30796
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

TIMOTHY HENDRICKS,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 5:09-CR-158-1


Before DeMOSS, STEWART, and ELROD, Circuit Judges.
PER CURIAM:*
       Timothy Hendricks appeals the 87-month sentence imposed by the district
court following his guilty plea conviction for possession of child pornography. He
argues that U.S.S.G. § 2G2.2(b)(7)(D) is unconstitutional because it was enacted
by Congress, rather than the Sentencing Commission, in violation of the
Separation of Powers Doctrine.             He also asserts that because the child
pornography images are the by-product of abuse and are available for free or



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
     Case: 10-30796 Document: 00511463240 Page: 2 Date Filed: 05/02/2011

                                    No. 10-30796

trade on the internet, his possession of additional images does not justify a
dramatic increase in punishment.
      Because Hendricks did not raise these arguments in the district court,
review is limited to plain error. See United States v. Mondragon-Santiago, 564
F.3d 357, 361 (5th Cir. 2009).       Under the plain error standard, he must
show that there is an error that is clear or obvious and that the error affects his
substantial rights. See Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).
If these prongs are established, the court has the discretion to correct the
forfeited error, “which ought to be exercised only if the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. (internal
marks and citation omitted).
      Hendricks failed to demonstrate that the district court’s application of
§ 2G2.2(b)(7)(D) constitutes error that is clear or obvious.          The only case
Hendricks    cites   to   support   his   proposition   that   §   2G2.2(b)(7)(D)   is
unconstitutional because it was enacted by Congress is Mistretta v. United
States, 488 U.S. 361 (1989). However, Mistretta considered whether Congress,
by placing the Sentencing Commission within the Judicial Branch, “delegated
excessive legislative power” or “upset the constitutionally mandated balance of
powers among the coordinate Branches.” 488 U.S. at 412. The Supreme Court
held that it did not.     Id.   Mistretta does not lend support to Hendricks’s
argument that § 2G2.2(b)(7)(D) is unconstitutional because it was enacted by
Congress. See United States v. Rodgers, 610 F.3d 975, 977 (7th Cir. 2010)
(rejecting the argument advanced by Hendricks); United States v. Bastian, 603
F.3d 460, 465 (8th Cir. 2010) (same).
      Further, this court has rejected, albeit in an unpublished opinion, the
argument that § 2G2.2 was structurally flawed because it was amended directly
by Congress, circumventing the Sentencing Commission. See United States v.
Meuir, 344 F. App’x 3, at *7 (5th Cir. 2009) (unpublished). Hendricks has failed
to show that the district court’s enhancement of his offense level under

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                                  No. 10-30796

§ 2G2.2(b)(7)(D) was error, much less plain error. See United States v. Valles,
484 F.3d 745, 759 (5th Cir. 2007) (noting that, to show plain error, the defendant
must show that the error is clear under current law).          Hendricks’s mere
disagreement with § 2G2.2(b)(7)(D) is insufficient to demonstrate that his
within-guidelines sentence was unreasonable. See United States v. Campos-
Maldonado, 531 F.3d 337, 338-39 (5th Cir. 2008).
      AFFIRMED.




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