United States v. Kirk Dewitt , 407 F. App'x 170 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50250
Plaintiff - Appellee, D.C. No. 5:06-cr-00084-VAP-1
v.
MEMORANDUM *
KIRK KARL DEWITT,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted December 8, 2010
Pasadena, California
Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.
Kirk Karl Dewitt raises two constitutional challenges to his 120-month
sentence on his plea to possession of child pornography. Finding neither challenge
persuasive, we affirm his sentence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Dewitt first challenges the district court’s consideration of investigative
and police reports without allowing for cross-examination of the authors of the
reports as violating his right to confrontation under Article VI of the Constitution.
The court reviews challenges to the constitutionality of the Sentencing Guidelines
de novo. United States v. Ellsworth, 456 F.3d 1146, 1149 (9th Cir. 2006).
Dewitt’s argument that he was denied his right to confront and cross-examine
witnesses as defined by the Supreme Court in Crawford v. Washington, 541 U.S.
36 (2004) fails because we have held that “the law on hearsay at sentencing is still
what it was before Crawford: hearsay is admissible at sentencing, so long as it is
accompanied by some minimal indicia of reliability.” United States v. Littlesun,
444 F.3d 1196, 1200 (9th Cir. 2006); see also United States v. Ingham, 486 F.3d
1068 (9th Cir. 2007). Dewitt’s challenge fails because a review of the record
reveals sufficient indicia of reliability for the challenged documents.
2. Dewitt’s second constitutional challenge is that the district court erred in
considering the sentencing guideline that enhanced his sentence for possessing 600
images because the guideline was promulgated by the Sentencing Commission
pursuant to Congress’s specific direction, and thus, the guideline violated the
separation of powers doctrine. The argument is not well-taken. First, accepting
that the Commission promulgated the five-level enhancement pursuant to
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Congress’s explicit direction, this does not violate the separation of powers
doctrine because Congress has the power to fix the sentence for a federal crime and
the scope of judicial discretion with respect to a sentence. United States v.
Mistretta, 488 U.S. 361, 364 (1989). Second, following Mistretta, the Supreme
Court has held that the Sentencing Guidelines are advisory. United States v.
Booker, 543 U.S. 220 (2005). The Court has indicated that, when Congress
mandates the promulgation of a Guideline by the Commission, the sentencing court
may consider that fact in determining whether to depart from the advisory
guideline, but the Guideline is not unconstitutional. See Kimbrough v. United
States, 552 U.S. 85, 109-10 (2007); see also Rita v. United States, 551 U.S. 338,
350 (2007).
For the forgoing reasons, Kirk Karl Dewitt’s sentence is AFFIRMED.
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