United States v. Mark Kiefer

Sentencing in child pornography cases can be controversial. In this case, however, it is not. Mark Robert Kiefer was indicted and, pursuant to a plea agreement, pleaded guilty to one count of receiving child pornography in violation of 18 U.S.C. § 2252 . Under the plea agreement, Kiefer reserved the right to appeal the constitutionality of § 2G2.2 of the United States Sentencing Guidelines (“U.S.S.G.”) and the five-year mandatory minimum sentence codified at 18 U.S.C. § 2252 (b)(1). The district court sentenced Kiefer to sixty-three months imprisonment pursuant to § 2G2.2 and 18 U.S.C. § 3553 .

We conclude that § 2G2.2 neither violates the separation of powers doctrine nor conflicts with § 3553. Further, we hold that the district court’s application of a two-level enhancement for the use of a computer under § 2G2.2(b)(6) does not result in impermissible double counting. In so holding, we join a number of our sister circuits that have addressed this question and unanimously reached the same conclusion. Finally, because the district court properly applied § 2G2.2, Kiefer lacks standing to challenge the constitutionality of the five-year mandatory minimum as it did not…