                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 12a1231n.06

                                            No. 11-3911

                             UNITED STATES COURT OF APPEALS
                                                                                          FILED
                                                                                      Nov 28, 2012
                                  FOR THE SIXTH CIRCUIT
                                                                                DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )       ON APPEAL FROM THE
                                                     )       UNITED STATES DISTRICT
v.                                                   )       COURT FOR THE NORTHERN
                                                     )       DISTRICT OF OHIO
MICHAEL L. STAHL,                                    )
                                                     )
       Defendant-Appellant.                          )
                                                     )


       BEFORE: MARTIN and GRIFFIN, Circuit Judges; BECKWITH, District Judge.*


       PER CURIAM. Michael L. Stahl challenges the constitutionality of his statutory mandatory

minimum sentence for distribution of child pornography.

       Stahl pleaded guilty to an amended information charging him with distribution of child

pornography in violation of 18 U.S.C. § 2252(a)(2). Stahl’s total offense level was twenty-seven

following various enhancements and a reduction for the acceptance of responsibility. Stahl had zero

criminal history points, corresponding to a criminal history category of I. Stahl’s resulting advisory

sentencing guidelines range was seventy to eighty-seven months of imprisonment. Pursuant to 18

U.S.C. § 2252(b)(1), Stahl’s mandatory minimum term of imprisonment was five years, with a

maximum term of twenty years.




       *
         The Honorable Sandra S. Beckwith, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.
No. 11-3911
United States v. Stahl

       Among his objections to the presentence report, Stahl argued that the enhancements

constituted impermissible double counting of the same conduct and that a criminal history category

of I overstated his criminal history. In his sentencing memorandum, Stahl asserted that section

2252(b)(1) is unconstitutional as applied to him and requested a sentence below the statutory

mandatory minimum sentence of sixty months.

       At sentencing, the district court overruled Stahl’s objections to the presentence report and

rejected his constitutional challenges to the statute. After considering Stahl’s arguments, and the

sentencing factors under 18 U.S.C. § 3553(a), the district court found that a downward variance from

the guidelines range was appropriate. The district court sentenced Stahl to the statutory mandatory

minimum of sixty months of imprisonment.

       In this timely appeal, Stahl argues that the mandatory minimum sentence under section

2252(b)(1) is unconstitutional as applied to him. Stahl’s constitutional challenge to his sentence is

a question of law which we review de novo. See United States v. Hughes, 632 F.3d 956, 959 (6th

Cir.), cert. denied, 131 S. Ct. 2975 (2011).

       Stahl contends that the mandatory minimum sentence under section 2252(b)(1) conflicts with

United States v. Booker, 543 U.S. 220, 253–54 (2005). Contrary to Stahl’s argument, “nothing in

Booker allows the court to negate the imposition of a mandatory minimum sentence.” United States

v. Franklin, 499 F.3d 578, 586 (6th Cir. 2007). According to Stahl, there is little difference between

his conduct and the offense of possession of child pornography. Yet, the difference in sentencing

is huge—a mandatory minimum sentence of five years and a maximum sentence of twenty years for

distribution versus no mandatory minimum sentence and a maximum sentence of ten years for

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No. 11-3911
United States v. Stahl

possession. However, the distribution of child pornography—in Stahl’s case, sending nine emails

containing images of child pornography—involves different conduct and is a more serious offense

than mere possession, justifying the disparate sentencing. See United States v. Fink, 502 F.3d 585,

589 (6th Cir. 2007). Stahl maintains that the statutory mandatory minimum also conflicts with the

directive of section 3553(a) to “impose a sentence sufficient, but not greater than necessary,” to

comply with statutory sentencing goals. While we have “acknowledge[d] the tension with section

3553(a), . . . that very general statute cannot be understood to authorize courts to sentence below

minimums specifically prescribed by Congress.” United States v. Cecil, 615 F.3d 678, 695 (6th Cir.

2010), cert. denied, 131 S. Ct. 1525 (2011) (internal quotation marks and citation omitted).

        In addition to his Sixth Amendment arguments, Stahl contends that the statutory mandatory

minimum eliminates the judge from the sentencing equation, usurping a core function of the judicial

branch in violation of the separation-of-powers doctrine. It is well established that “Congress . . .

has the power to fix the sentence for a federal crime, and the scope of judicial discretion with respect

to a sentence is subject to congressional control.” Mistretta v. United States, 488 U.S. 361, 364

(1989) (internal citation omitted). Accordingly, “we have flatly rejected the claim that mandatory

minimums unconstitutionally violate separation-of-powers principles.” Cecil, 615 F.3d at 696

(internal quotation marks and citation omitted).

        Stahl claims that the sentencing inquiry, unencumbered by the mandatory minimum, calls

for a sentence far less than sixty months, asserting that the § 3553(a) factors support mitigation; that

his offense level was artificially inflated by gratuitous and duplicative enhancements; and that his



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No. 11-3911
United States v. Stahl

criminal history was overstated. Because the district court was encumbered by the mandatory

minimum, we need not reach Stahl’s remaining arguments.

       The district court’s judgment is affirmed.




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