                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4721


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN LOCKE HAMBY, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Abingdon.   James P. Jones, District
Judge. (1:10-cr-00035-JPJ-PMS-1)


Submitted:   February 16, 2012            Decided:   February 22, 2012


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Larry W. Shelton, Federal Public Defender, Brian J. Beck,
Assistant Federal Public Defender, Abingdon, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Jean B.
Hudson, Assistant United States Attorney, Lucas E. Beirne, Third
Year Law Intern, Charlottesville, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            John      Locke    Hamby,    Jr.,       appeals       from       the    324-month

sentence     imposed     for    his     conviction          of    receipt          of    visual

depictions of a minor engaged in sexually explicit conduct in

violation of 18 U.S.C. § 2252(a)(2) & (b)(1) (2006).                               On appeal,

he raises two issues: (1) whether the district court abused its

discretion       by   rejecting    his        contention         that    a    fifteen-year

sentence     was      sufficient      because        his    age     had       reduced       his

likelihood of reoffending; and (2) whether the district court’s

sentencing enhancement under U.S. Sentencing Guidelines Manual

(“USSG”)     §     2G2.2(b)(7)(D)       (2010)        was     invalid         because       the

enhancement was promulgated directly by Congress and therefore

contrary to Mistretta v. United States, 488 U.S. 361 (1989).

For the reasons that follow, we affirm.

            We find no abuse of discretion in the district court’s

rejection of Hamby’s contention that his age would significantly

reduce his likelihood of reoffending, such that he only needed a

fifteen-year sentence.           Gall v. United States, 552 U.S. 38, 49

(2007) (stating review standard); United States v. Carter, 564

F.3d 325, 328 (4th Cir. 2009) (same).                       Moreover, we note that

Hamby’s    324-month     sentence       was       within    his    properly-calculated

advisory sentencing range of 324-405 months and is therefore

entitled to an appellate presumption of reasonableness.                                 Rita v.



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United States, 551 U.S. 338, 347 (2007); United States v. Abu

Ali, 528 F.3d 210, 261 (4th Cir. 2008).

              Next, we note that USSG § 2G2.2(b)(7)(D) increases a

defendant’s base offense level by five if the offense involved

600 or more images.         That Congress, rather than the Sentencing

Commission,     promulgated      this     enhancement     is    without    moment.

Contrary to Hamby’s arguments, Mistretta does not assist him.

Mistretta      considered       whether       Congress’    delegation      to    an

independent Federal Sentencing Commission of the authority to

promulgate the Sentencing Guidelines violated the separation-of-

powers doctrine; the Court held that it did not.                 Mistretta, 488

U.S. at 371.       Rather, Mistretta states that “the Commission is

fully accountable to Congress, which can revoke or amend any or

all of the Guidelines as it sees fit.”                    Id. at 393-94.        The

Seventh and Eight Circuits have specifically rejected Hamby’s

argument.      United States v. Rodgers, 610 F.3d 975, 977-78 (7th

Cir. 2010); United States v. Bastian, 603 F.3d 460, 464-65 (8th

Cir. 2010).

              Accordingly, we affirm Hamby’s sentence.                 We dispense

with   oral    argument    as    the    facts    and   legal    contentions     are

adequately     addressed    in   the    materials      before   this    court   and

argument would not aid the decisional process.

                                                                          AFFIRMED



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