United States v. Salazar ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0425n.06
Filed: June 22, 2006
Nos. 05-1810/05-1835
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. )
) ON APPEAL FROM THE UNITED
DANIEL SALAZAR, ) STATES DISTRICT COURT FOR THE
) WESTERN DISTRICT OF MICHIGAN
Defendant-Appellant. )
Before: DAUGHTREY and COLE, Circuit Judges, and GRAHAM,* District Judge.
PER CURIAM. The defendant, Daniel Salazar, challenges the sentence imposed
following his conviction in two cases that were consolidated in the district court. In the first
case, a Michigan grand jury charged Salazar with using interstate facilities to entice a minor
to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b), and persuading a minor
to travel in interstate commerce to engage in sexual conduct, in violation of 18 U.S.C. §
2422(a). In the second case, a New Mexico grand jury indicted him for traveling in
interstate commerce for the purpose of engaging in illicit sexual conduct with a minor, in
violation of 18 U.S.C. § 2423(b), and for engaging in sexually explicit conduct with a minor
for the purpose of producing a photograph that was later transported in interstate
*
The Hon. James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
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United States v. Salazar
commerce, in violation of 18 U.S.C. § 2251(a). The latter case was transferred to
Michigan, where the defendant entered guilty pleas to three of the four counts in the two
indictments, pursuant to a plea agreement, and was sentenced to an effective sentence of
15 years, which is the statutory mandatory minimum sentence under § 2251.
In the plea agreement, the defendant reserved the right to challenge the
constitutionality of the PROTECT Act,1 of which the amendment to § 2251 is a part. On
appeal, he has done so, arguing that a provision in the Act that increases the mandatory
minimum sentence for a violation of § 2251 from 10 to 15 years is unconstitutional because
it violates the “separation of powers” doctrine and that, as applied to his case, § 2251
violates the Commerce Clause. We find no merit to these two contentions and affirm the
judgment of the district court.
The defendant bases his separation-of-powers argument on an Oregon district court
opinion, United States v. Detwiler, 338 F. Supp. 2d 1166 (D.Or. 2004), in which the court
held invalid the so-called Feeney Amendment, which was part of the PROTECT Act but
which involved the sentencing guidelines and not the increase in the mandatory minimum
sentence imposed in this case under § 2251. Salazar nevertheless argues that if the
Feeney Amendment is unconstitutional, as the Detwiler court held, then the entire
1
The legislation otherwise known as the PROTECT Act actually bears the awkward title of
Prosecutorial and Other Tools to end the Exploitation of Children Today Act. It includes a variety of provisions,
including the creation of a national “Amber Alert” notification program for child abductions and the increase
in sentence at issue here. The Feeney Amendment, which amended various provisions of the United States
Sentencing Guidelines and changed the composition of the federal Sentencing Commission, was added as
a rider to the Act.
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United States v. Salazar
PROTECT Act must be held invalid, and his sentence should therefore be reduced to the
ten-year mandatory minimum that predated the Act.
Of course, a district court opinion from another circuit has little persuasive value at
this stage of the current litigation, even though the Oregon court’s description of the
PROTECT Act is certainly apt: “a smorgasbord of unrelated provisions stuffed into a single
bill for political reasons.” Id. at 1182. Moreover, the issue in Detwiler was not the
constitutionality of the entire Act but “whether the present federal Guidelines system, as it
has been constructed by Congress, passes constitutional muster.” Id. In addition, the
PROTECT Act has a severability clause2 that, in our judgment, would prevent the
invalidation of the amendment to § 2251 even if the Feeney Amendment were found to be
unconstitutional. See Plain Dealer Pub. Co. v. City of Lakewood, 794 F.2d 1139, 1147-48
(6th Cir. 1986) (“The Supreme Court has held that invalid portions of a statute should be
severed unless it is clear that the Legislature would not have enacted those provisions which
are constitutional, independent of those provisions which are not.”). We therefore conclude
that there is no merit to the defendant’s challenge to the PROTECT Act.
Salazar also challenges his conviction under § 2251(a) on the ground that Congress
“did not have the power to criminalize this type of private activity” because there is an
2
Section 2 of the Act provides: “If any provision of this Act, or the application of such provision to any
person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other
persons not similarly situated or to other circumstances, shall not be affected by such invalidation.” Pub.L.
No. 108-21, § 2, 117 Stat. at 651.
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United States v. Salazar
insufficient nexus between the pornographic photograph of the minor and interstate
commerce, based on the Supreme Court’s opinions in United States v. Lopez, 514 U.S. 549
(1995), and United States v. Morrison, 529 U.S. 598 (2000), and our opinion in United
States v. Corp, 236 F.3d 325 (6th Cir. 2001). In the latter case, we reversed a conviction
under the PROTECT Act, holding that proof that the paper used to develop photographs of
child pornography had traveled interstate was insufficient to implicate the Commerce
Clause. However, the opinion in Corp predates the Supreme Court’s recent decision in
Gonzales v. Raich, 545 U.S. 1 (2005), and our application of that decision to a § 2251
conviction in United States v. Chambers, 441 F.3d 438 (6th Cir. 2006). The thorough
analysis in the Chambers case need not be reiterated here. Given the proof in the record
that the photograph in question was transmitted across state lines by means of the Internet,
it is sufficient to note that for the reasons set out in Chambers, the constitutional challenge
in this case must likewise fail.
AFFIRMED.
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