United States v. Croxford , 170 F. App'x 31 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
March 7, 2006
TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 04-4158
BRENT LEE CROXFORD, a/k/a Brent (D.C. No. 2:02-CR-00302 PGC)
Croxford, (District of Utah)
Defendant-Appellant.
ORDER AND JUDGMENT*
Before BRISCOE, PORFILIO, Circuit Judges, and BROWNING, District Judge.**
Defendant-Appellant Brent Croxford appeals his sentence of 148 months for
coercing a minor to engage in sexually explicit conduct for the purpose of producing a
visual depiction of the conduct. Croxford raises two issues on appeal: (i) whether 18
U.S.C. § 2251(a) is facially unconstitutional or unconstitutional as applied;1 and (ii)
*
This Order and Judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
The Honorable James O. Browning, United States District Judge for the District
**
of New Mexico, sitting by designation.
1
Croxford also raises on appeal whether 18 U.S.C.§ 2252A(a)(5)(B) is facially
unconstitutional or unconstitutional as applied. We will not, however, discuss the
constitutionality of 18 U.S.C. § 2252A(a)(5)(B) -- Count II of the Indictment. Croxford
whether the district court committed constitutional error when it applied the Guidelines in
an advisory manner and enhanced the Defendant’s sentence based on judicially-found
facts. Section 2251(a), which criminalizes the intrastate production of child pornography,
is facially constitutional and constitutional as applied to Croxford’s conduct. Because the
statute’s application to Croxford’s conduct is constitutional, and the district court applied
the Guidelines in an advisory rather than in a mandatory fashion, we affirm the conviction
and the sentence.
pled to Count I, and the United States moved the district court to dismiss Count II. While
the parties have continued to address the constitutionality of 18 U.S.C. § 2252A(a)(5)(B)
in their briefs, the district court dismissed that charge. See e.g., United States v.
Randolph, 364 F.3d 118, 119 n. 1 (3d Cir. 2004) (noting that, while the defendant
appealed conviction for violating § 2251(a), he could not challenge § 2252(a)(4)(B),
under which he was indicted but not convicted, because the United States later dismissed
the count). Hence, we address only the “production” statute and not the “possession”
statute.
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FACTUAL BACKGROUND2
In November 2001, “C.C.,” a young girl, approximately eight or nine years old,
disclosed to Lori Thomassen, a caseworker from the Utah Division of Children and
Family Services, and Detective Craig Ellerston, with the South Jordan Police Department,
that Croxford, her adoptive father, had taken nude photographs of her with a digital
camera. C.C. described the sexually explicit poses that Croxford asked her to perform in
the photographs. C.C. also stated that she believed Croxford put these photographs on the
Internet and that he had taken similar photographs of another young girl who had been a
foster child in the Croxford home.
Ellerston interviewed Croxford, who stated that he had taken “bathtub”
photographs of C.C. Croxford also confirmed in the interview that he owned a Sony
digital camera and was an Internet provider for certain customers. He also told Ellerston
that he repaired and worked on computers in his home. At the conclusion of the
interview, Croxford stated in reference to the sexually explicit pictures C.C. described: “I
meant to delete all of those;” and “You should take me out and shoot me.” Order
Denying Motion to Dismiss at 2.
Based on this information, Ellerston obtained a search warrant for the Croxford
home. During the warrant’s execution, the officers discovered several computer diskettes
2
The facts we recite in this section are taken from the district court’s Order
Denying Motion to Dismiss (filed July 2, 2004). The record provided by the parties does
not contain the transcript of the hearing on Croxford’s motion to dismiss or any other
underlying evidence. The parties do not appear, however, to contest these facts.
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in a file cabinet that contained sexually explicit pictures of C.C. The officers also
examined Croxford’s computer equipment and discovered that he had downloaded
thousands of pornographic images, including child pornography. The computer
equipment, the computer diskettes, and the Sony digital camera that the officers took
from Croxford’s home were manufactured outside of the state of Utah. See id.
PROCEDURAL BACKGROUND
A federal grand jury indicted Croxford on charges of production of child
pornography and possession of child pornography based on C.C.’s testimony regarding
the digital photographs and the images of C.C. found on the computer diskettes. Count I
of the indictment charged Croxford with coercing a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of such conduct, which visual
depiction was produced using materials that have been transported in interstate
commerce, in violation of 18 U.S.C. § 2251(a).
Croxford filed a motion to dismiss, arguing that the conduct alleged in the
indictment -- the intrastate production of child pornography -- was beyond Congress’
authority to regulate under the Commerce Clause of Article I of the United States
Constitution. The district court denied the motion, concluding that the Commerce Clause
gives Congress the power to enact the criminal statute under which the grand jury
indicted Croxford. See Order Denying Motion to Dismiss at 1. Croxford subsequently
pled guilty to Count I of the indictment. He stipulated to the following facts:
Between on or about an unknown date and continuing through November
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22, 2001, defendant took and possessed sexually explicit photographs of his
adopted nine-year old daughter with his digital camera. The images were
produced using materials, including the digital camera, computers, and
computer diskettes, that were mailed, shipped, and transported in interstate
commerce. The defendant’s actions violated Title 18, United States Code,
Section 2251.
Statement By Defendant in Advance of Plea of Guilty ¶ 12, at 4 (filed Feb. 25,
2004)(hereinafter “Statement in Advance of Plea”). The Statement in Advance of Plea
also specified that Croxford retained his right to appeal the district court’s order denying
his motion to dismiss for lack of jurisdiction. See id. ¶ 13(3)(A), at 5.
Based on these stipulated facts and the presentence report’s recommendation,
Croxford faced a then-mandatory Sentencing Guideline range of 121-151 months. The
Supreme Court of the United States decided Blakely v. Washington, 542 U.S. 296 (2004),
shortly before the district court sentenced Croxford. At the sentencing, the district court
applied Blakely to the Federal Sentencing Guidelines to hold that they violated the Fifth
and Sixth Amendments. In so holding, the district court struck the Guidelines down as
facially unconstitutional and unconstitutional as applied to Croxford. After striking down
the Guidelines, the district court believed that it was free to examine all “relevant”
information in determining Croxford’s sentence. See United States v. Croxford, 324 F.
Supp. 2d 1230, 1247-49 (D. Utah 2004). Predicting the Supreme Court’s conclusion in
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), that the Guidelines are
advisory and not mandatory, the district court looked to the Guidelines as “useful
instruction on the appropriate sentence.” 324 F. Supp. 2d at 1248. The district court also
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looked at Croxford’s psychiatric history, the victim’s vulnerability, and the offense’s
seriousness. Using the Guidelines as a guide, the district court then sentenced Croxford
to a term of 148 months. See id. at 1248.
LOPEZ, MORRISON, AND RAICH
Under the Commerce Clause, Congress is authorized “[t]o regulate Commerce
with foreign Nations, and among the several States, and with the Indian Tribes.” U.S.
Const. art. I, § 8, cl. 3. This power is not limitless, however. See United States v. Lopez,
514 U.S. 549, 553 (1995). As the Supreme Court explained in Gonzales v. Raich, 545
U.S. ___, 125 S. Ct. 2195 (2005), there are “three general categories of regulation in
which Congress is authorized to engage under its commerce power.” Id. at 2205.
Congress may regulate: (i) “the channels of interstate commerce;” (ii) “the
instrumentalities of interstate commerce, or persons or things in interstate commerce,
even though the threat may come only from intrastate activities;” and (iii) “activities that
substantially affect interstate commerce.” United States v. Lopez, 514 U.S. at 558-59.
See Gonzales v. Raich, 125 S. Ct. at 2205. In United States v. Lopez, the Supreme
Court’s decision whether gun possession in school zones substantially affected interstate
commerce turned on four considerations. See 514 U.S. at 559-67. The Supreme Court
considered: (i) whether the statute regulated economic activity; (ii) whether the statute
contained an express jurisdictional element that might limit its reach; (iii) whether
Congress made findings about the prohibited activity’s effect on interstate commerce; and
(iv) whether there was a substantial, non-attenuated link between the prohibited activity
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and its effect on interstate commerce. See United States v. Morrison, 529 U.S. 598, 609-
12 (2000).
Morrison clarified the “substantially affects” test and elaborated on the controlling
four factors for determining whether a regulated activity substantially affects interstate
commerce. First, a court must determine whether the challenged statute has anything to
do with “commerce” or economic enterprise, however broadly one might define those
terms. Second, a court must consider whether the statute contains an express
jurisdictional element which might limit its reach to a discrete set of cases that have an
explicit connection with or effect on interstate commerce. Third, any congressional
findings regarding the regulated activity’s impact on interstate commerce may inform the
court’s inquiry. Finally the court must consider whether the link between the regulated
activity and a substantial effect on interstate commerce is attenuated. See Id. at 610-13.
In Gonzales v. Raich, 125 S. Ct. 2195, the Supreme Court did not explicitly refer
to or use these four considerations to analyze the statute in that case. Justice Scalia, in his
opinion concurring in the judgment, also did not expressly mention these four
considerations. Without more express direction from the Supreme Court, however, we do
not believe we should jettison the Lopez-Morrison framework when addressing the facial
challenge. The Supreme Court in Gonzales v. Raich does not say that it is going that far.
The absence of the Lopez-Morrison analysis in Gonzales v. Raich may be the result of the
Supreme Court’s self-described “modest” task in that case:
Respondents in this case do not dispute that passage of the [Controlled
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Substances Act], as part of the Comprehensive Drug Abuse Prevention and
Control Act, was well within Congress’ commerce power. Nor do they
contend that any provision or section of the CSA amounts to an
unconstitutional exercise of congressional authority. Rather, respondents’
challenge is actually quite limited; they argue that the CSA’s categorical
prohibition of the manufacture and possession of marijuana as applied to
the intrastate manufacture and possession of marijuana for medical
purposes pursuant to California law exceeds Congress’ authority under the
Commerce Clause.
Gonzales v. Raich, 125 S. Ct. at 2204-2205 (emphasis added)(citations omitted). In other
words, Gonzales v. Raich dealt merely with an as-applied challenge, as opposed to a
facial one, to the CSA under the commerce clause. We do not read Gonzales v. Raich to
completely dispense with the Lopez-Morrison framework for addressing a facial
challenge. Indeed, as the majority in Gonzales v. Raich explain, the two challenges are
distinct and the distinction is pivotal:
As an initial matter, the statutory challenges at issue in [Lopez and
Morrison] were markedly different from the challenge respondents pursue
in the case at hand. Here, respondents ask us to excise individual
applications of a conceded valid statutory scheme. In contrast, in both
Lopez and Morrison, the parties asserted that a particular statute or
provision fell outside Congress’ commerce power in its entirety. This
distinction is pivotal for we have often reiterated that “where the class of
activities is regulated and that class is within the reach of federal power, the
courts have no power ‘to excise, as trivial, individual instances’ of the
class.”
125 S. Ct. at 2209 (citations omitted). Without further guidance from the Supreme Court,
we are hesitant to scrap the Lopez-Morrison approach employed by every circuit that has
addressed facial challenges to § 2251(a) and analogous statutes under the Commerce
Clause, and will still use the four Lopez-Morrison factors as a checklist in analyzing the
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statute. The Court will, however, employ Gonzales v. Raich to address Croxford’s as-
applied challenge.
DISCUSSION
Here, as in Lopez and Morrison, Croxford asserts that § 2251(a), which
criminalizes purely intrastate production of child pornography, falls outside Congress’
commerce power in its entirety. Alternatively, he asserts that, even if § 2251(a) is within
Congress’ commerce power, it is unconstitutional as applied to him. Under the Supreme
Court’s analysis in Lopez and Morrison, the Court finds § 2251(a) constitutional. And
because Raich controls our analysis of Croxford’s as-applied challenge, the Court rejects
such challenge.
I. SECTION 2251(a) IS FACIALLY CONSTITUTIONAL.
We review “challenges to the constitutionality of a statute de novo.” United States
v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000). The district court considered whether it
could uphold the challenged statute under both the second and third categories, evaluating
the statute’s constitutionality under both a “things-in-commerce” and a “substantially
affecting commerce” analysis. Order Denying Motion to Dismiss, at 6-13. Because we
believe that this statute fits within the third category, the substantially affects test, and that
we can uphold its constitutionality under the four Lopez-Morrison factors for that
category, we need not and will not address the statute’s constitutionality under the second
category -- instrumentalities of interstate commerce. See Ashwander v. Tenn. Valley
Auth., 297 U.S. 288, 347 (1936)(Brandeis, J., concurring)(“The Court will not pass upon
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a constitutional question although properly presented by the record, if there is also present
some other ground upon which the case may be disposed of.”).
A. Congress May Constitutionally Regulate Intrastate Economic Activities
That, In The Aggregate, Substantially Affect Interstate Commerce.
The Supreme Court’s case law “firmly establishes Congress’ power to regulate
purely local activities that are part of an economic ‘class of activities’ that have a
substantial effect on interstate commerce.” Gonzales v. Raich, 125 S. Ct. at 2205. See
United States v. Lopez, 514 U.S. at 560 (“Where economic activity substantially affects
interstate commerce, legislation regulating that activity will be sustained.”); United States
v. Morrison, 529 U.S. at 610 (“[W]e have upheld a wide variety of congressional Acts
regulating intrastate economic activity where we have concluded that the activity
substantially affected interstate commerce.”)(citation omitted). In Gonzales v. Raich, the
Supreme Court set forth a broad definition of economic activities to include not only the
“production” and “distribution” of commodities, but their “consumption” as well. 125 S.
Ct. at 2211 (“‘Economics’ refers to ‘the production, distribution, and consumption of
commodities.’”)(quoting Webster’s Third New International Dictionary 720 (1966)).
When regulated activities can be classified as economic in nature, then, as the Supreme
Court articulated in Gonzales v. Raich, it is not a court’s role to determine whether the
regulated “activities, taken in the aggregate, substantially affect interstate commerce in
fact, but only whether a ‘rational basis’ exists for so concluding.” 125 S. Ct. at 2208(quoting United States v. Lopez, 514 U.S. at 557).
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The Supreme Court first defined this aggregation doctrine in Wickard v. Filburn,
317 U.S. 111, 128-29 (1942). In Wickard, the Supreme Court held that Congress’
Commerce Clause authority supported the federal regulation of home-grown wheat,
which was planted, cultivated, and consumed within the intrastate confines of a family
farm. See id. The Supreme Court reasoned that, because rising market prices could draw
this home-grown wheat into the interstate market and undermine Congress’ price control
scheme, “Congress had a rational basis for believing that, when viewed in the aggregate,
leaving home-consumed wheat outside the regulatory scheme would have a substantial
influence on price and market conditions.” Gonzales v. Raich, 125 S. Ct. at 2207.
“Wickard thus establishes that Congress can regulate purely intrastate activity that is not
itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to
regulate that class of activity would undercut the regulation of the interstate market in that
commodity.” Id. at 2206.
Over sixty years later, the Supreme Court reaffirmed the ongoing validity of the
aggregation doctrine. In Gonzales v. Raich, the Supreme Court upheld Congress’
authority to prohibit the intrastate manufacture and possession of marijuana for medical
purposes. See 125 S. Ct. at 2201. Like the wheat at issue in Wickard v. Filburn, the
Supreme Court reasoned that high demand increased the likelihood that the respondents’
home-grown marijuana would be drawn into the interstate market, thus frustrating
congressional efforts to eliminate the commodity entirely. See id. at 2206-07. The
Supreme Court found rational Congress’ conclusion that, if left unregulated, home-grown
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marijuana could, in the aggregate, have “a substantial effect on supply and demand in the
national market.” Id. at 2207.
1. Congressional findings.
Any congressional findings regarding the regulated activity’s impact on interstate
commerce may inform the court’s inquiry. We recently rejected an as-applied challenge
to § 2251(a) in United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).
Although Jeronimo-Bautista involved an as-applied challenge to § 2251(a) rather than a
facial challenge, its reasoning and findings are instructive in this case. As we did in
Jeronimo-Bautista, we start here with congressional history. In Jeronimo-Bautista, we
cited, extensively, the congressional history of the Act:
When Congress first passed the Protection of Children Against Sexual
Exploitation Act of 1977, it noted that child pornography . . . has become a
highly organized, multimillion dollar industry that operates on a nationwide
scale . . . and that the sale and distribution of such pornographic materials
are carried on to a substantial extent through the mails and other
instrumentalities of interstate and foreign commerce. Findings supporting
the 1977 Act also noted that since the production, distribution and sale of
child pornography is often a clandestine operation, it is extremely difficult
to determine its full extent. At present, however, a wide variety of child
pornography is available in most areas of the country. Moreover, because
of the vast potential profits involved, it would appear that this sordid
enterprise is growing at a rapid rate.
Amendments to the Act in 1984 eliminated the requirement that the
production, receipt, transportation, or distribution of child pornography be
for a pecuniary profit. The purpose of this amendment was to eliminate an
enforcement gap in the statute: Many of the individuals who distribute
materials covered [by the statute] do so by gift or exchange without any
commercial motive and thus remain outside the coverage of this provision.
Likewise, in 1984, in support of § 2251, Congress echoed its findings
supporting the original 1977 legislation, stating in part that child
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pornography has developed into a highly organized, multi-million-dollar
industry which operates on a nationwide scale.
In 1996, Congress further amended the Act regarding the electronic creation
of child pornography. The findings supporting those amendments noted
that the existence of . . . child pornographic images . . . inflames the desires
of child molesters, pedophiles, and child pornographers who prey on
children, thereby increasing the creation and distribution of child
pornography. Congress also stated that prohibiting the possession and
viewing of child pornography will encourage the possessors of such
material to rid themselves of or destroy the material, thereby helping to
protect the victims of child pornography and to eliminate the market for the
sexual exploitative use of children. Finally, in a 1998 amendment to the
Act, a jurisdictional element was added to cover child pornography created
using materials that have been mailed, shipped, or transported in interstate
or foreign commerce by any means. This addition reflected Congress’
concern about federal law enforcement’s current inability to prosecute a
number of cases where the defendant produced the child pornography but
did not intend to transport the images in interstate commerce.
425 F.3d at 1269-71 (citations, footnotes, and internal quotations omitted).
As we acknowledged in Jeronimo-Bautista, “Congress may not have
engaged in specific fact finding regarding how the intrastate production of child
pornography substantially affects the larger interstate pornography market.” Id.
at 1271. The Supreme Court, however, “has ‘never required Congress to make
particularized findings to legislate.’” Id. (quoting Raich 125 S. Ct. at 2208). The
Supreme Court in Raich explained:
While congressional findings are certainly helpful in reviewing the
substance of a congressional statutory scheme, particularly when the
connection to commerce is not self-evident, and while we will
consider congressional findings in our analysis when they are
available, the absence of particularized findings does not call into
question Congress’ authority to legislate.
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125 S. Ct. at 2208.
In Raich, the Court emphasized that it had “never required Congress to
legislate with scientific exactitude. When Congress decides that the ‘total
incidence’ of a practice poses a threat to a national market, it may regulate the
entire class.” 125 S. Ct. at 2206-07. Here, Congress made findings regarding
intrastate commerce. The legislative history of § 2251(a), cited above, explains
why Congress included local activities within the scope of its regulatory scheme.
In Jeronimo-Bautista, upon review of the statute’s legislative history that we
quoted above and in agreement with the First Circuit, we accordingly concluded
that “Congress’ explicit findings regarding the extensive national market in child
pornography and the need to diminish that national market support the contention
that prohibiting the production of child pornography at the local level helps to
further the Congressional goal.” 425 F.3d at 1271 (quoting United States v.
Morales-de Jesus, 372 F.3d 6, 12 (1st Cir. 2004)). 3
2. The economic nature of the regulated activity.
We must next determine whether the challenged statute has anything to do
with “commerce” or economic enterprise, however broadly one might define
3
We agree with the district court’s suggestion that the legislative history of these
statutes may, in fact, be “outdated,” because much of the data on which Congress relied
predates the explosion of child pornography and Internet access in recent years. Order
Denying Motion to Dismiss, at 11. We further share the district court’s suspicion that the
current market for child pornography is even more far reaching and poses an even greater
threat to children and society than did the market that existed when Congress originally
enacted these statutes. See id. at 11-12.
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those terms. The district court considered § 2251 and concluded that “there can
be little disagreement that production of child pornography is economic in
nature.” Order Denying Motion to Dismiss at 9 (citing United States v. Buculei,
262 F.3d 322, 329 (4th Cir. 2001)).
We also have no hesitation finding that the production of child pornography
is economic in nature. The Supreme Court has acknowledged the interstate
market for child pornography. See Ashcroft v. Free Speech Coalition, 535 U.S.
234, 249 (2002); New York v. Ferber, 458 U.S. 747, 760 (1982); Osborne v.
Ohio, 495 U.S. 103, 110 (1990). See also United States v. Buculei, 262 F.3d at
329. Additionally, the congressional findings cited above indicate that production
of child pornography is economic in nature. The Protection of Children Against
Sexual Exploitation Act of 1977 (hereinafter “Act”) prohibits the production,
receipt, transmission and possession of child pornography. See 18 U.S.C. §§
2251, 2252, 2252A. By this Act, Congress has undertaken to extinguish the
interstate market for child pornography. The Commerce Clause permits that
exercise of power.
Unlike the regulated activity in Lopez and Morrison, the nature of
producing child pornography -- even purely intrastate -- makes it an economic
activity. There is undoubtedly a market for it. This conclusion is suggested by
the numerous congressional findings and those of other circuits, which show that
child pornography is a multimillion dollar industry operating on a nationwide
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scale.
Additionally, the Supreme Court’s decision in Gonzales v. Raich supports
the district court’s conclusion that § 2251(a) regulates economic activities.
Section 2251(a)’s prohibition on the production of child pornography fits squarely
within Gonzales v. Raich’s definition of “economic,” which explicitly
encompasses the “production” of a commodity. 125 S. Ct. at 2211. See United
States v. Jeronimo-Bautista, 425 F.3d at 1269-71 (“Like the [Controlled
Substances Act in Raich], the child pornography statutes regulate the ‘production,
distribution, and consumption of commodities for which there is an established,
and lucrative, interstate market.’ Congress’ prohibition against the intrastate
possession or manufacture of child pornography ‘is a rational (and commonly
utilized) means of regulating commerce in that product.’”)(quoting Gonzales v.
Raich 125 S. Ct. at 2211 and citing United States v. Morales-de Jesus, 372 F.3d 6,
12 (1st Cir. 2004)).
3. Link between production of child pornography and its
substantial effect on interstate commerce.
“[T]he task before us is a modest one. We need not determine whether
[Croxford’s] activities, taken in the aggregate, substantially affect interstate
commerce in fact, but only whether a ‘rational basis’ exists for so concluding.”
Gonzales v. Raich, 125 S. Ct. at 2208.
Wickard and Raich control our analysis of the link between the regulated
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activity and its effect on interstate commerce. See United States v. Jeronimo-
Bautista, 425 F.3d at 1271-73; United States v. Morales-de Jesus, 372 F.3d at 15(“The seminal case in this area remains Wickard v. Filburn, 317 U.S. 111.”).
While there are differences between the production of child pornography for
personal use here and the commodities in Wickard and Raich, 4 the similarities
between this case and Wickard and Raich are strong, and the differences do not
have constitutional significance. The differences do not diminish the precedential
force of Wickard and Raich.
First, Wickard and Raich involved “a fungible commodity for which there
is an established . . . interstate market .” Gonzales v. Raich, 125 S. Ct. at 2206.
As we stated in Jeronimo-Bautista, “[c]hild pornography is [as] equally fungible
[as marijuana] and there is no question an established market exists for its sale
and exchange.” 425 F.3d at 1273. Second, like the farmer in Wickard and the
user in Raich, Croxford produced a commodity for, at a minimum, home
consumption. Just as the Agricultural Adjustment Act at issue in Wickard “was
designed ‘to control the volume [of wheat] moving in interstate and foreign
commerce,’ ” Gonzales v. Raich, 125 S. Ct. at 2206 (modification in
4
For example, the wheat market is a lawful market that Congress sought to
protect and stabilize, whereas the marijuana and child pornography markets are unlawful
markets that Congress has sought to eradicate. See Gonzales v. Raich, 125 S. Ct. at 2207
n. 29. The difference, however, is if no constitutional import. Congress’ power to
regulate commerce includes the power to prohibit commerce in a particular commodity.
See id.-17-
original)(quoting Wickard v. Filburn, 317 U.S. at 115), and the Controlled
Substances Act at issue in Raich was designed “to control the supply and demand
of controlled substances,” id. at 2207, the primary purpose of § 2251(a) is to curb
the national supply and demand for child pornography, see United States v.
Morales-de Jesus , 372 F.3d at 15-16.
Like the Supreme Court in Wickard and Raich, we have no difficulty
concluding that Congress had a rational basis for believing that, when viewed in
the aggregate, leaving home-consumed child pornography outside the regulatory
scheme would have a substantial influence on price and market conditions. A
rising demand in the interstate market could raise prices, and thus draw child
pornography, originally produced for home consumption, into the interstate
market. This resulting increased supply in the interstate market could eventually
result in decreased prices, which would then make it less expensive for
individuals to purchase child pornography. The diversion of home-created child
pornography could frustrate the federal interest in eliminating transactions in the
interstate market in their entirety. See United States v. Morales-de Jesus, 372
F.3d at 16-17 (“The prohibition on intrastate production curbs the supply of child
pornography at its source, before it is released into the interstate market. . . .
Often, as is the case here, it is necessary to control local behavior to ensure the
effectiveness of interstate regulation.”). The regulation is “squarely within
Congress’ commerce power because production of the commodity meant for home
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consumption, be it wheat . . ., marijuana or child pornography, has a substantial
effect on supply and demand in the national market for the commodity.” United
States v. Jeronimo-Bautista , 425 F.3d at 1273 (quoting Raich , 125 S. Ct. at 2207).
Moreover, it is virtually impossible to distinguish between child
pornography manufactured and distributed intrastate from child pornography
manufactured and distributed interstate. Given the enforcement difficulties that
attend distinguishing between child pornography produced locally and child
pornography produced elsewhere, and concerns about diversion into interstate
channels, we conclude that Congress had a rational basis for believing that failure
to regulate the intrastate manufacture and possession of child pornography would
leave a gaping hole in its attempt to eliminate the market for child pornography.
The failure of Congress to regulate the intrastate activity at issue here “could . . .
undercut” its regulation of interstate commerce. United States v. Lopez, 514 U.S.
at 561. Thus, as in Wickard and in Raich, Congress’ enactment of comprehensive
legislation to regulate the interstate market in the commodity of child
pornography, is within its authority “to regulate Commerce . . . among the several
States.” U.S. Const. art I, § 8. “That the regulation ensnares some purely
intrastate activity is of no moment.” Gonzales v. Raich, 125 S. Ct. at 2209. The
Supreme Court in Raich refused to excise individual components of that larger
scheme. We should not do so either.
In light of the wealth of congressional findings on child pornography’s
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effect on interstate commerce, and Supreme Court and Tenth Circuit precedent,
we conclude that Congress rationally found that the intrastate production of child
pornography, in the aggregate, substantially affects interstate commerce. Cf.
Gonzales v. Raich, 125 S. Ct. at 2219 (Scalia, J., concurring in the
judgment)(“That simple possession is a non-economic activity is immaterial to
whether it can be prohibited as a necessary part of a larger regulation.”).
4. Express jurisdictional element.
We noted in Jeronimo-Bautista:
Section 2251(a) includes a jurisdictional element as required by the
Lopez/Morrison factors. While other courts have questioned the
sufficiency of § 2251(a)’s jurisdictional element, see Morales-de
Jesus, 372 F.3d at 13-14; [United States v.] Holston, 343 F.3d [83,]
88-89 [(2d Cir. 2003)]; [United States v.] Rodia, 194 F.3d [465,]
471-74 [(3rd Cir. 1999)], we need not linger on this issue. In light of
the Supreme Court’s ruling in Raich, and our conclusion that the
activity regulated in this case has a substantial impact on interstate
commerce, any “failure of the jurisdictional element effectively to
limit the reach of the statute is not determinative.”
425 F.3d at 1273 n. 4 (quoting United States v. Holston, 343 F.3d at 89).
Here the “activity on the whole” -- when reviewed through the lens of the
remaining Lopez-Morrison factors -- “bears a significant relationship to interstate
commerce.” United States v. Holston, 343 F. 3d at 89. Thus, when Croxford
argues that the statute’s jurisdictional element, requiring that the regulated child
pornography must have been produced using materials that have been mailed,
shipped, or transported in interstate or foreign commerce, lacks a principled limit
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on Congress’ authority to regulate, that objection is not sufficient, alone, to defeat
Congress’ legislative authority to enact this statute. See Appellant’s Brief at 19-
20. 5
The district court, citing United States v. Rodia, 194 F.3d at 471-73, held,
along with several circuits, that this “materials-in-commerce” jurisdictional
element, on its own, is inadequate to confer congressional authority over the
intrastate production and simple possession of child pornography. Order Denying
Motion to Dismiss, at 10. Despite this conclusion, the district court upheld the
statute, reasoning that the jurisdictional element did not bear sole responsibility
for establishing the statute’s impact on interstate commerce. See id. at 13. We
do not believe that we need to decide this issue because we hold that Congress
rationally concluded that the regulated activities, in the aggregate, substantially
affect interstate commerce, and, hence, acted within its constitutional authority in
enacting this statute, irrespective of the sufficiency of the statute’s jurisdictional
element. See United States v. Holston, 343 F.3d at 89; United States v. Morales-
de Jesus, 372 F.3d at 21 (“[T]he disconnect between the interstate commerce
5
In his brief, Croxford also implies that, because the statute contains a “materials-
in-commerce,” rather than a “substantially affects commerce” jurisdictional element, we
may only evaluate the statute’s constitutionality under Lopez’ second category. See
Appellant’s Brief at 18-19. The appellant, however, cites no authority for this
proposition, and we have not found any case law to support this assertion. Croxford’s
position lacks merit. Congress’ task is to pass constitutional legislation; the courts’ task
is to interpret and apply constitutional laws. That Congress may have read Supreme
Court cases and tried to ensure the constitutionality of its legislation by one means does
not preclude the law enacted from being constitutional on other grounds.
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activity described in the jurisdictional element of § 2251(a) and the interstate
commerce activity (the national market for child pornography) that prompted
Congress to criminalize the production of child pornography is not fatal to the
constitutionality of the statute.”).
B. Lopez and Morrison do not Suggest a Different Result.
Croxford places heavy reliance on the Supreme Court’s decisions in United
States v. Lopez and United States v. Morrison. The statutes at issue in those two
cases, however, were different from the statute at issue in this case. “At issue in
Lopez was the validity of the Gun-Free School Zones Act of 1990, which was a
brief, single-subject statute making it a crime for an individual to possess a gun in
a school zone.” Gonzales v. Raich, 125 S. Ct. at 2209 (citation omitted).
Morrison involved the Violence Against Women Act of 1994 which “created a
federal civil remedy for the victims of gender-motivated crimes.” Id. at 2210.
Unlike the Protection of Children Against Sexual Exploitation Act of 1977, the
statutes at issue in Lopez and Morrison were not “a comprehensive framework for
regulating the production, distribution, and possession of [a commodity].” Id.In both Lopez and Morrison, the parties asserted that the statute at issue fell
outside Congress’ power in its entirety. Croxford, however, does not suggest that
Congress has no power to regulate child pornography; he argues that § 2251(a) is
unconstitutional because it implicates purely intrastate activity. This distinction
is pivotal. The Supreme Court has often reiterated that, “[w]here the class of
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activities is regulated and that class is within the reach of federal power, the
courts have no power ‘to excise as trivial, individual instances’ of the class.”
Gonzales v. Raich, 125 S. Ct. at 2209 (citing Perez v. United States, 402 U.S.
146, 154 (1971)).
In Lopez, the Supreme Court distinguished the Gun-Free School Zones Act
of 1990 from other statutes that it had upheld:
Section 922(q) is a criminal statute that by its terms has nothing to
do with ‘commerce’ or any sort of economic enterprise, however,
broadly one might define those terms. Section 922(q) is not an
essential part of a larger regulation of economic activity, in which
the regulatory scheme could be undercut unless the intrastate activity
were regulated.
United States v. Lopez, 514 U.S. at 561. The Supreme Court concluded the
statute was invalid because it “did not regulate any economic activity and did not
contain any requirement that the possession of a gun have any connection to past
interstate activity or a predictable impact on future commercial activity.”
Gonzales v. Raich, 125 S. Ct. at 2209.
Similarly, in Morrison, the Supreme Court explained that “thus far in our
Nation’s history our cases have upheld Commerce Clause regulation of intrastate
activity only where that activity is economic in nature.” United States v.
Morrison, 529 U.S. at 613. The Supreme Court held the Violence Against
Women Act of 1994 unconstitutional because it did not regulate economic
activity. See id. (“Gender-motivated crimes of violence are not, in any sense of
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the phrase, economic activity.”)
The statutory scheme that the United States is defending in this litigation is
more similar to the statutory scheme in Wickard and in Raich than to the statutes
in Lopez and Morrison. The Act aims to extinguish the interstate market for child
pornography by prohibiting its production, receipt, transmission and possession.
Because the Act is a statute that directly regulates economic activity, the Supreme
Court’s opinions in Lopez and Morrison do not cast doubt on its constitutionality.
II. SECTION 2251(a) IS CONSTITUTIONAL AS APPLIED TO THE
INTRASTATE PRODUCTION OF CHILD PORNOGRAPHY.
Croxford argues that the statute in question is unconstitutional as applied to
him. The Supreme Court analysis in Gonzales v. Raich controls our analysis of
Croxford’s as-applied challenge to § 2251(a). Because § 2251(a) is a facially
proper exercise of Congress’s Commerce Clause power and Croxford’s conduct
falls within the regulated class, any as-applied challenge to the statute based on
arguments that his conduct was not sufficiently commercial or did not implicate
interstate commerce because the depictions never crossed state lines, must
necessarily fail. Raich makes clear that the Commerce Clause grants Congress
the power to regulate an entire class of activities that substantially affects
interstate commerce, even if the commercial effect of an individual instance
within the class is slight. Here, Croxford sexually exploited a nine-year-old girl
in his custody, and such exploitation is within the bounds of what Congress
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intended to proscribe by its enactment of § 2251(a).
The conduct in United States v. Jeronimo-Bautista, 425 F.3d 1266, where
we rejected an as-applied challenge to § 2251(a), was arguably more localized
with less evidence of intent to distribute or sell than the facts currently before us.
In Jeronimo-Bautista, the defendant, with two other men, entered a vacant
residence with a 13-year old girl, and after the girl became unconscious, removed
her clothing, sexually assaulted her, and took photographs of their actions. See
id. at 1268. We held that Congress’ decision, that the defendant’s local
production of child pornography is illegal conduct, represents a “rational
determination that such local activities constitute an essential part of the interstate
market for child pornography that is well within Congress’ power to regulate.”
Id. at 1273. We found, relying on Raich, that “the intrastate production of child
pornography could, in the aggregate, have a substantial effect on the interstate
market for such materials.” Id. at 1272-73. The photographs in Jeronimo-
Bautista were not disseminated, nor were they stored or transmitted electronically
via the Internet, the United States Postal Service, or any other method crossing
state lines or internationally. See id. at 1268. Here, images were stored on
computer diskettes, and were downloaded on a computer, and Croxford had easy
access of dissemination as an Internet provider. Croxford’s as-applied challenge
is weaker than that in Jeronimo-Bautista, and in accordance with that decision,
Croxford’s as-applied challenge necessarily fails.
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Croxford cites to two circuit courts and some district courts that have
reached the conclusion that § 2251(a) is unconstitutional as applied to the
defendants before them. See McCoy v. United States, 323 F.3d 1114, 1132 (9th
Cir. 2003); United States v. Corp., 236 F.3d 325, 332 (6th Cir. 2001); United
States v. Jeronimo-Bautista, 319 F. Supp. 2d 1272, 1282 (D. Utah 2004) 6; United
States v. Matthews, 300 F. Supp. 2d 1220, 1237 (N.D. Ala. 2004). In United
States v. Morales-de Jesus, the First Circuit articulated two situations where child
pornography as-applied challenges may arise. See 372 F.3d at 17-19 (2004).
First, as-applied challenges may arise when a defendant argues that his conduct
does not impact commerce because the perpetrator does not intend to sell or
distribute the visual depiction. See id. at 18. This argument fails, because
Congress’ power to prohibit this conduct does not rely on the economic facts of a
single case, but instead relies on its power to control an entire class of conduct.
See id.The First Circuit acknowledged that as-applied challenges may also arise
that “focus on facts other than the economic facts of the particular case. These
facts could include the age of the minor, the relationship between the defendant
and the minor, the nature of the allegedly sexually explicit conduct, and the
nature of the visual depiction of that conduct.” See id. The district court
6
We reversed and remanded United States v. Jeronimo-Bautista, 319 F. Supp. 2d
1272 in United States v. Jeronimo-Bautista, 425 F.3d 1266.
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accepted this rationale, explaining that, when the conduct involved nude pictures
of a mother and daughter or an almost eighteen-year-old victim who consented to
the activity, the statute might become unconstitutional as applied. See Order
Denying Motion to Dismiss at 15. See also United States v. McCoy, 323 F.3d at
1132; United States v. Corp., 236 F.3d at 332. We need not decide whether the
particular facts of a case could ever give rise to an as-applied challenge. Rather,
we need only determine whether this rationale supports an as-applied challenge to
this case’s facts. Here, Croxford intentionally exploited two young children while
he had custody over them. He had the means, as an Internet provider, to
distribute the pictures. He also had thousands of images of child pornography on
his computer. Thus, the child pornography statute is a proper exercise of
Congress’ Commerce Clause authority, and the district court did not
unconstitutionally apply it to Croxford’s conduct.
III. THE DISTRICT COURT’S SENTENCE DID NOT VIOLATE
BOOKER.
In Blakely, the Supreme Court held that the Sixth Amendment, in a state
prosecution, “requires that the maximum permissible sentence in a particular case
must be determined solely by reference to ‘facts reflected in the jury verdict or
admitted by the defendant.’” United States v. Wilson, 416 F.3d 1164, 1171 (10th
Cir. 2005)(quoting Blakely v. Washington, 542 U.S. at 302). In Booker, the
Court extended the Blakely reasoning to the Federal Sentencing Guidelines,
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“holding that the Sixth Amendment requires that ‘any fact (other than a prior
conviction) . . . necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury verdict must be
admitted by the defendant or proved to a jury beyond a reasonable doubt.’” Id.(quoting United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005)). “[T]he
Court [in Booker] severed the provision of the Sentencing Reform Act making
application of the Guidelines mandatory.” United States v. Wilson, 416 F.3d at
1171 (citation omitted).
In cases where sentencing occurred before Booker, we have recognized two
sentencing errors: (i) constitutional Booker error occurs when the district court
relies on “judge-found facts, other than those of prior convictions, to enhance a
defendant’s sentence mandatorily;” and (ii) non-constitutional Booker error
occurs where the district court applies “the Guidelines in a mandatory fashion,
even though the resulting sentence was calculated solely upon facts that were
admitted by the defendant, found by the jury, or based upon the fact of a prior
conviction.” Id. at 1171-72 (quoting United States v. Gonzalez-Huerta, 403 F.3d
727, 731-32 (10th Cir. 2005)). The district court committed neither constitutional
nor non-constitutional Booker error. The court did not enhance the sentence in a
mandatory fashion, but rather applied the Guidelines in an advisory manner. The
sentencing issue Croxford raises is what has become the “garden variety”
assertion we are frequently seeing -- that the district court violated his
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constitutional right by enhancing his sentence based on judicially-found facts to
which he has not pled guilty and which were not charged in the indictment. By
applying our post-Booker jurisprudence, we conclude that no constitutional error
occurred here. The district court anticipated the holding in Booker and did not
apply the Guidelines in a mandatory fashion, but rather, only applied the
Guidelines in an advisory fashion. Croxford stipulated in his plea agreement that
sometime before November 2002 he took sexually explicit photographs of his
adopted daughter with his digital camera, that he used a computer, and that he
used materials transported in interstate commerce when creating these images.
Booker directs a court to consider the factors laid out in § 3553(a),
including the now-advisory guideline ranges, when determining the sentence. See
Booker, 125 S. Ct. at 757. Though the district court did not specifically refer to
18 U.S.C. § 3553(a) in determining Croxford’s sentence, it considered many of
the factors listed under the statute as well as the Guidelines and the district court
sentenced Croxford to a sentence within the Guideline range. See United States
v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004)(“[W]e have made it quite clear
that the sentencing court is not required to consider individually each factor listed
in § 3553(a) before issuing a sentence.”)(citations omitted).
The district court did not sentence Croxford in violation of the Fifth and
Sixth Amendment, and Croxford’s sentence is constitutional under Blakely and
under Booker.
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CONCLUSION
Accordingly, for the reasons stated above, we affirm the district court’s
order of dismissal and the defendant’s sentence.
Entered for the Court
James O. Browning
District Judge
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