United States v. Blum, Gregory ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3154
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GREGORY BLUM,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin
No. 07-CR-27—John C. Shabaz, Judge.
____________
ARGUED MAY 12, 2008—DECIDED JULY 15, 2008
____________
Before ROVNER, EVANS, and WILLIAMS, Circuit Judges.
ROVNER, Circuit Judge. On March 8, 2007, a grand jury
returned an indictment charging Gregory Blum with two
counts of manufacturing child pornography in violation
of 18 U.S.C. § 2251(a). Blum filed a motion to dismiss
the indictment arguing that § 2251(a) was unconstitu-
tional as applied to him, and the district court denied that
motion. Blum then filed a conditional guilty plea to both
counts, preserving his right to appeal the denial of his
motion to dismiss. The district court sentenced him to 60
years in prison, and Blum appeals, challenging both the
denial of the motion to dismiss and the sentence.
2 No. 07-3154
The charges in this case stemmed from a search war-
rant executed at Blum’s home, which yielded a Panasonic
mini-DV tape. That videotape recorded various segments
of Blum committing child sexual assault over a two-day
period of time in July 2006. Blum subsequently admitted
that he was the adult on the tape, and that the child was
approximately three years old. He also admitted to the
sexual assault of three separate girls between the ages of
3 and 5 during the summer of 2006, one of whom was
the one on the tape. Blum believed that it was “probably”
the same child depicted on the tape in each of the two days.
Blum first argues that 18 U.S.C. § 2251(a) violates the
Commerce Clause of the United States Constitution as
applied to the facts of his case, because the pornography
was manufactured at his home in Wisconsin, for his
private viewing and possession, and therefore was unre-
lated to the stream of commerce. The only movement in
interstate commerce that is alleged is that the mini-DV
tapes were manufactured outside the state of Wisconsin.
Blum maintains that the federal government cannot
prosecute him for an offense that had no other connec-
tion to interstate commerce.
We upheld an analogous provision, 18 U.S.C.
§ 2252(a)(4)(B), which prohibited possession of child
pornography, against a similar Commerce Clause chal-
lenge. United States v. Angle, 234 F.3d 326 (7th Cir. 2000).
In Angle, we held that Congress could properly crim-
inalize even intrastate possession of child pornography
as necessary to close a loophole that was undermining
its ability to regulate interstate child pornography. Id. at
338. That reasoning is equally applicable to the intrastate
production of child pornography. Moreover, the Supreme
Court in Gonzales v. Raich, 545 U.S. 1 (2005) adopted a
No. 07-3154 3
similar approach which reaffirms the soundness of our
decision in Angle.
In Raich, the Supreme Court considered a Commerce
Clause challenge to the use of the federal Controlled
Substances Act (CSA) to criminalize the purely intrastate
manufacture and possession of marijuana for medical
purposes, which was allowed by state law. The Court
began by noting that there are three general categories
of regulation available to Congress under its commerce
power: first, “Congress can regulate the channels of
interstate commerce”; second, “Congress has authority
to regulate and protect the instrumentalities of interstate
commerce, and persons or things in interstate commerce”;
and finally, “Congress has the power to regulate activities
that substantially affect interstate commerce.” Id. at 16-17.
The third category was implicated in Raich as well as in
the present case.
In determining that the federal government could
criminalize even the purely intrastate manufacture and
possession of marijuana that was allowed by state law
for medical purposes, the Court emphasized that Con-
gress has the power under the Commerce Clause “to
regulate purely local activities that are part of an economic
“class of activities” that have a substantial effect on inter-
state commerce.” Id. at 17. Moreover, the Court made
it clear that the substantiality of an individual’s own
activities was not the relevant focus. Instead, the Court
emphasized its earlier holdings that the de minimis charac-
ter of an individual’s actions under a statute is of no
consequence because the proper focus is on the individ-
ual’s contribution taken together with that of many
others similarly situated. Id. Nor was it dispositive that
the marijuana growers were not engaged in commercial
4 No. 07-3154
activity, but were merely growing it for their own,
medically-approved use. The Court noted its holding
in Wickard v. Filburn, 317 U.S. 111 (1942), which estab-
lished 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 18.
Accordingly, it was not dispositive that the quantity of
marijuana grown by an individual was not significant,
nor that it was not being sold. Instead, the Court consid-
ered whether the regulation of the intrastate production
and possession of marijuana was necessary to effectively
regulate the interstate market. The Court stressed the
narrow role for the courts in assessing such challenges.
First, the Court held that the absence of particularized
findings by Congress that the intrastate cultivation and
possession of marijuana for medical purposes would
substantially affect the interstate market, was not
dispositive. Such particularized findings will be con-
sidered by courts, but are not required absent a special
concern such as the protection of freedom of speech. In
addition, the Court emphasized that a court’s task in
assessing the scope of Congress’ authority under the
Commerce Clause is a modest one: a court “need not
determine whether respondents’ activities, taken in the
aggregate, substantially affect interstate commerce in
fact, but only whether a ‘rational basis’ exists for so
concluding.” Id. at 22.
The Court held that such a rational basis existed in Raich
because the high demand for marijuana in the interstate
market created a likelihood that marijuana grown for
local consumption would be drawn into the interstate
No. 07-3154 5
market. Id. at 19. Moreover, the exemption of intrastate
marijuana would impair the ability of Congress to enforce
its interstate prohibition given the difficulty in distin-
guishing between marijuana cultivated locally and that
grown elsewhere. Id. at 22.
Parallel concerns are present in the regulation of the
interstate child pornography market, and accordingly
since the Raich decision many circuits have rejected a
similar Commerce Clause challenge to that raised by Blum.
In fact, the Eleventh Circuit pre-Raich had upheld a Com-
merce Clause challenge to a comparable provision, 18
U.S.C. § 2252A(a)(5)(B) of the Child Pornography Preven-
tion Act (CPPA), but reversed its conclusion when the
Supreme Court remanded the case for reconsideration
in light of Raich. United States v. Maxwell, 446 F.3d 1210
(11th Cir. 2006). On remand, the Eleventh Circuit found
the Raich analysis dispositive, stating that “[i]ndeed, much
of the Court’s analysis could serve as an opinion in this
case by simply replacing marijuana and the CSA with
child pornography and the CPPA.” Id. at 1216. As that
court and others noted, the CPPA is part of a comprehen-
sive regulatory scheme designed to eliminate the market
for child pornography similar to the regulation of con-
trolled substances by the CSA. Moreover, Congress in
enacting the statute recognized the danger posed by any
child pornography regardless of origin, noting in essence
that child pornography begets more child pornography,
and therefore supporting the conclusion that the failure
to regulate that class of activity would undermine the
regulation of the interstate market in child pornography:
[T]he existence of and traffic in child pornographic
images . . . inflames the desires of child molesters,
pedophiles, and child pornographers who prey on
6 No. 07-3154
children, thereby increasing the creation and distribu-
tion of child pornography and the sexual abuse and
exploitation of actual children who are victimized as
a result of the existence and use of these materials;
the sexualization and eroticization of minors through
any form of child pornographic images has a deleteri-
ous effect on all children by encouraging a societal
perception of children as sexual objects and leading
to further sexual abuse and exploitation of them;
and . . . 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; and . . . the
elimination of child pornography and the protection
of children from sexual exploitation provide a com-
pelling governmental interest for prohibiting the
production, distribution, possession, sale, or viewing of
visual depictions of children engaging in sexually
explicit conduct . . . .
Pub.L. No. 104-208, § 121, 1996 HR 3610,110 Stat. at 3009-
27. As was the case in Raich, the high demand for child
pornography in the interstate market presented the real
danger that purely-intrastate child pornography would
find its way to that market. Similarly, the same difficulty
in distinguishing between locally-produced marijuana
and interstate marijuana for enforcement purposes is
problematic with respect to child pornography as well.
Given those substantial concerns, and additionally con-
sidering the Congressional determination that the manu-
facture and possession of any child pornography itself
feeds the market and increases demand for it, we hold that
No. 07-3154 7
Congress rationally could conclude that Blum’s actions,
taken in aggregation with others engaged in similar
activities, substantially affects interstate commerce. We
therefore join our sister circuits in rejecting the Com-
merce Clause challenge to the application of the statute to
intrastate child pornography. See e.g. United States v.
Sullivan, 451 F.3d 884, 891 (D.C. Cir. 2006) (Congress
could proscribe intrastate possession of child pornog-
raphy because it had a rational basis to conclude that
the failure to regulate such possession would leave a
significant gap in its comprehensive efforts to eliminate
the market for sexually exploitative uses of children);
United States v. Forrest, 429 F.3d 73, 78 (4th Cir. 2005)
(characterizing case as strikingly similar to Raich, court
rejected Commerce Clause challenge, holding that Con-
gress could rationally fear that homemade child pornog-
raphy would find its way into interstate commerce);
United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006)
(child pornography statutes are part of comprehensive
legislation to regulate the interstate market in a fungible
commodity and Congress has a rational basis for be-
lieving that locally-produced child pornography can feed
the national market and stimulate demand); United States
v. Grimmett, 439 F.3d 1263, 1273 (10th Cir. 2006) (it is
irrelevant that the defendant neither shipped the mate-
rials interstate nor intended to benefit commercially from
his conduct; Congress’ decision to reach such conduct is
a rational determination that such local activities are an
essential part of the interstate market for child pornogra-
phy); United States v. Smith, 459 F.3d 1276, 1285 (11th Cir.
2006) (conviction for intrastate production and possession
of child pornography constitutional because Congress
could rationally conclude that the inability to regulate
purely intrastate possession and production would, in
8 No. 07-3154
the aggregate, undermine its ability to regulate the inter-
state market for child pornography).
Blum has a remaining challenge, however, which is to
the application of two enhancements at Blum’s sen-
tencing, which he contends constitutes impermissible
double-counting. It is impermissible for a district court to
impose two or more upward adjustments within the
same guidelines range when both are premised on the
same conduct. United States v. Schmeilski, 408 F.3d 917,
919 (7th Cir. 2005). The presence of some factual overlap
is not sufficient to trigger the prohibition on double
counting, however, where the two enhancements address
distinct aspects of a defendant’s conduct. Id. Pursuant
to U.S.S.G. § 3D1.2, two offense levels were added to
Blum’s base offense level because he was convicted on two
separate counts of child pornography. In addition, he
received a five-level enhancement under U.S.S.G. § 4B1.5(b)
because he “engaged in a pattern of activity involving
prohibited sexual conduct.” Blum argues that both en-
hancements are premised on the same conduct—the acts
of creating child pornography on the two separate days.
Blum argues that the same child was the victim in each
of the counts, and therefore that the district court improp-
erly concluded that there were multiple victims in ap-
plying the pattern enhancement. That claim fails, however,
because the pattern enhancement applies whenever a
defendant convicted of manufacturing child pornography
under 18 U.S.C. § 2251 engaged in a pattern of activity
involving prohibited sexual conduct. “Prohibited sexual
conduct” is defined as: (i) any offense described in 18
U.S.C. § 2426(b)(1)(A) or (B); (ii) the production of
child pornography; or (iii) trafficking in child pornog-
raphy only if, prior to the commission of the instant of-
No. 07-3154 9
fense of conviction, the defendant sustained a felony
conviction for that trafficking in child pornography.
U.S.S.G. § 4B1.5(b), Application Note 4(A). The definition,
therefore, is not limited to actions involving child pornog-
raphy, but includes conduct that constitutes an offense
as described in 18 U.S.C. § 2426(b)(1)(A) or (B). Blum
admitted to the sexual assault of three young girls in
the summer of 2006, which is an offense described in 18
U.S.C. § 2426(b)(1)(A) or (B) which incorporates by refer-
ence conduct described in 18 U.S.C. § 2241 (sexual abuse
of a minor). Blum’s argument that a conviction for that
sexual abuse is required ignores the language of Applica-
tion Note 4(A), which uses 18 U.S.C. § 2426(b)(1) as de-
scriptive of conduct that is prohibited sexual conduct.
There is nothing in that definition that would indicate a
requirement that the conduct have resulted in a conviction.
That conduct, not the repeated instances of the manufac-
ture of child pornography, forms the basis for the pat-
tern enhancement under U.S.S.G. § 4B1.5(b). Because the
two enhancements were premised on distinct conduct,
there is no impermissible double-counting. The decision
of the district court is AFFIRMED.
USCA-02-C-0072—7-15-08