                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0198n.06

                                           No. 11-5259                                      FILED
                                                                                        Feb 17, 2012
                             UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )   ON APPEAL FROM THE UNITED
v.                                                )   STATES DISTRICT COURT FOR THE
                                                  )   MIDDLE DISTRICT OF TENNESSEE
EDWARD M. HILL,                                   )
                                                  )
       Defendant-Appellant.                       )
                                                  )


       Before: COOK, MCKEAGUE, and ROTH, Circuit Judges.*


       COOK, Circuit Judge. Edward Hill pleaded guilty to one count of possessing child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of receipt of child

pornography in violation of § 2252A(a)(2)(A). The district court sentenced him to 210 months’

imprisonment. On appeal, Hill challenges both the procedural and substantive reasonableness of his

sentence. For the following reasons, we affirm.


       Hill first came to the attention of authorities when an undercover detective from the Franklin

County (Ohio) Sheriff’s Department encountered him in online chat rooms. The detective used online

profiles that led Hill to believe that he was interacting with minor children. During these online

conversations, Hill asked sexually explicit questions and sent photographs of minor females “in

        *
         The Honorable Jane R. Roth, United States Court of Appeals for the Third Circuit, sitting
 by designation.
No. 11-5259
United States v. Hill


various states of dress,” including some “of young girls engaged in sexual activity with adult males.”

Authorities eventually determined that Hill resided in Tennessee and the Tennessee Bureau of

Investigation obtained a search warrant for Hill’s home. There, investigators seized and inspected

two computers finding 27 videos and more than 2000 still images of child pornography. After his

arrest, Hill pleaded guilty to one count each of receipt and possession of child pornography.


       The United States Probation Office prepared a Presentence Investigation Report using the

2010 version of the United States Sentencing Guidelines Manual. At sentencing, Hill’s attorney

answered in the negative when asked whether he had any objections to the Guidelines calculations

laid out in the PSR. Nonetheless, during his argument as to why Hill should be given a sentence

below the advisory guideline range, Hill’s counsel argued that the court should disregard the “number

of images” enhancement that Hill received under U.S.S.G. § 2G2.2(b)(7)(D), which provides for a

five-level enhancement for child pornography offenses involving 600 or more images. Hill’s attorney

asserted that because Congress enacted the enhancement through direct legislation, the provision

constitutes an unconstitutional usurpation of judicial authority—specifically, the authority of the

United States Sentencing Commission to produce and amend the Guidelines. He then urged the court

to sentence Hill to the statutory minimum of 60 months’ imprisonment, noting Hill’s service in the

Navy and lack of prior criminal history. The court ultimately rejected Hill’s challenge to the

constitutionality of the 600-image enhancement and sentenced Hill to 210 months’ imprisonment, the

bottom of the Guidelines range. This appeal followed.



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No. 11-5259
United States v. Hill


       We first review de novo Hill’s challenge to the procedural reasonableness of his sentence

premised on the district court’s application of U.S.S.G. § 2G2.2(b)(7)(D), which Hill urges us to

reject as unconstitutional. In United States v. McNerney, 636 F.3d 772 (6th Cir. 2011), we considered

and rejected the same argument Hill raises:


              Despite Congress’ significant purpose in prohibiting the dissemination of child
       pornography, some courts and commentators have questioned the wisdom of the
       congressionally-directed Child Pornography Sentencing Guideline because they were
       the product of Congressional mandate rather than the Commission’s preferred
       systematic, empirical approach. However, the debate regarding the wisdom of
       congressionally-mandated enhancements notwithstanding, it is unquestionably
       Congress’ constitutional prerogative to issue sentencing directives such as the
       sentencing enhancements for quantity of images at issue in this case.


               It is axiomatic that in our system, so far as at least concerns the federal powers,
       defining crimes and fixing penalties are legislative functions. The Supreme Court has
       reiterated that Congress, of course, has the power to fix the sentence for a federal
       crime. Thus, notwithstanding the delegation of authority provided to the Commission
       in the Sentencing Reform Act, Congress retained ultimate authority over the federal
       sentencing guidelines. Congress thus retains the ability to influence federal sentencing
       policy by enacting directives to the Commission, which the Commission is obliged
       to implement.

McNerney, 636 F.3d at 777-78 (internal citations and quotation marks omitted). This analysis equally

supports our rejection of Hill’s objection to § 2G2.2(b)(7)(D).


       Hill also questions the substantive reasonableness of his sentence, arguing that the district

court, by imposing a sentence within 30 months of the statutory maximum, violated the principles of

proportionality and unreasonably weighted the Guideline range. He contends that in light of

mitigating features of his background—he had no prior criminal history, pleaded guilty, and did not

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 No. 11-5259
 United States v. Hill


have “physical contact with a minor”—his sentence “leaves no meaningful room to impose a

proportionately more severe punishment on an offender who is worse.” We reject this argument as

well. Appellate courts review the substantive reasonableness of a defendant’s sentence for abuse of

discretion. United States v. Houston, 529 F.3d 743, 755 (6th Cir. 2008). “The touchstone for our

review is whether the length of the sentence is reasonable in light of the § 3553(a) factors.” United

States v. Tate, 516 F.3d 459, 469 (6th Cir. 2008). Examples of substantive unreasonableness include

“selecting the sentence arbitrarily, basing the sentence on impermissible factors, failing to consider

pertinent § 3553(a) factors, or giving an unreasonable amount of weight to any pertinent factor.”

United States v. Webb, 403 F.3d 373, 385 (6th Cir. 2005) (footnote omitted).


        The district court properly exercised its discretion in reaching its sentence. To the extent that

the district court discussed the Guidelines in its statement of reasons, it focused not on the Guidelines

enhancements as presented in the PSR, but rather on the disturbing factual bases for those

enhancements. For example, the district court noted that Hill possessed images of prepubescent

minors (two-level enhancement) and images involving sadistic or masochistic conduct (four levels),

and that he distributed sexually explicit images of children “to what the defendant thought was a

14-year-old girl as well as another occasion dealing with a 14-year-old boy” (five levels). Explaining

why it concurred with the Guidelines range calculation, the district court carefully addressed each

enhancement and examined each of the § 3553(a) factors in turn before announcing its sentence. The

district court also considered the mitigating factors that Hill highlights in his briefs; the court rejected



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No. 11-5259
United States v. Hill


the government’s recommendation of 231 months as “too high, particularly for someone with no

criminal history that’s otherwise been employed.” We find no abuse of discretion.


       For these reasons, we affirm.




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