United States v. Larry Bollinger

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4086
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
LARRY MICHAEL BOLLINGER,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:12-cr-00173-RJC-1)
Argued: May 13, 2015 Decided: August 19, 2015
Before GREGORY and HARRIS, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Gregory wrote the opinion,
in which Judge Harris and Senior Judge Hamilton joined.
ARGUED: Anthony J. Colangelo, SOUTHERN METHODIST UNIVERSITY,
Dallas, Texas, for Appellant. Amy Elizabeth Ray, OFFICE OF THE
UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.
ON BRIEF: Anthony G. Scheer, RAWLS, SCHEER, FOSTER,
MINGO & CULP, PLLC, Charlotte, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
GREGORY, Circuit Judge:
This case examines the constitutional limits of Congress’s
power to regulate the activities of U.S. citizens traveling and
living abroad. Specifically, we consider whether Congress may
prohibit individuals from engaging in non-commercial “illicit
sexual conduct” after they “travel in foreign commerce.”
The district court upheld the legislation at issue,
reasoning that Congress acted pursuant to its constitutional
authority to implement an international treaty designed to
combat the commercial sexual exploitation of children. For the
reasons that follow, we affirm on different grounds and hold
that the Foreign Commerce Clause provides constitutional
sanction. We separately affirm the prison sentence imposed by
the district court.
I.
Larry Bollinger, an ordained Lutheran minister, moved to
Haiti in 2004 to oversee a large ministry outside of Port Au
Prince with his wife. The religious center included a school
that served hundreds of children (Village of Hope) and a gated
compound for missionaries (Hope House).
Bollinger was also a sex addict who periodically frequented
prostitutes in Haiti. In 2009, he began molesting young girls.
The first was a 16- or 17-year-old who Bollinger sexually abused
2
until he “caught her trying to steal a substantial amount of
money from the ministry and kicked her out.” J.A. 93. A few
months later, the minister began molesting three other girls,
each 11-years-old. As Bollinger later described their first
encounter, “some girls came to the [Hope House] compound and
made themselves available and I took advantage of them.” J.A.
92. The minister engaged in sexual activity with the girls four
times over a period of weeks. According to an account he later
provided to the National Center for Missing and Exploited
Children (“NCMEC”), the girls “came onto him sexually,” asked
him to perform oral sex on them, and “wanted to have intercourse
with [him].” J.A. 350-51. Bollinger admitted to fondling and
performing oral sex on the girls but stated that he refused to
have intercourse with them. Id. at 352.
In September 2009, Bollinger was in bed with another woman
in Haiti when he received a phone call from his wife, who was in
the United States. Bollinger confessed his infidelity and
agreed to counseling. Approximately a week later, the minister
traveled to Virginia to meet with the chair of the Lutheran
organization that administered the Village of Hope. At the
meeting, Bollinger acknowledged his sex addiction but failed to
mention his molestation of underage girls.
The Bollingers then traveled to North Carolina where they
had a telephone interview with Dr. Milton Magness, a Texas
3
psychologist who treats clergy members who have sex addictions
but are working to stay in their marriages. The couple
scheduled a three-day in-person session with the psychologist,
and Bollinger then returned to Haiti “because [they] had
business . . . [he] had to take care of.” J.A. 100. Bollinger
later testified during sentencing that he did not have any
further sexual contact with underage girls, although they “came
to the gate numerous times” seeking help. J.A. 100.
In November 2009, the Bollingers attended the three-day
intensive therapy session with Dr. Magness. During the
minister’s first individual session, he disclosed his sexual
contact with the young girls in Haiti. Dr. Magness reminded
Bollinger that the minister had signed an informed consent form,
and that the psychologist would have to report any injuries to a
child. Bollinger did not appear “overly concerned,” and he
continued disclosing his sexual activity with children. J.A.
140. When asked whether he had engaged in similar activity with
children in the United States, Bollinger “was adamant that he
had not.” J.A. 147. Dr. Magness later testified that he did
not understand at the time how Bollinger could “seem[]
unconcerned about what was happening in another country, but
be[] adamant about saying that he had not done anything like
that in the U.S.” J.A. 147. The psychologist concluded that
“perhaps [Bollinger] thought he was beyond the reach of the law
4
because . . . his behavior had taken place in another country.”
J.A. 147-48.
Dr. Magness called the NCMEC to report the minister’s
confessed conduct, and the Bollingers joined the call to ensure
the information provided was accurate. The psychologist also
informed the couple that he could not help them further, because
he did not treat sex offenders. Dr. Magness instead referred
them to Sante Center for Healing, an in-patient program for sex
addicts. Bollinger was admitted to Sante in December 2009,
where he remained in treatment for 94 days. The treatment notes
describe the minister as cooperative and productive. After his
release, Bollinger moved back to North Carolina where he
attended Sex Addicts Anonymous meetings until he was arrested.
A.
A grand jury indicted the minister on May 15, 2012,
charging him with two counts of engaging in an illicit sexual
act with a minor after traveling in foreign commerce, in
violation of 18 U.S.C. §§ 2423(c) and (e). The defense filed a
Motion for a Bill of Particulars, seeking clarification about
whether the “illicit sexual conduct” alleged was non-commercial
(as defined by 18 U.S.C. § 2246) or commercial (as defined by 18
U.S.C. § 1591). The government replied that it was alleging
non-commercial conduct, and that it intended to prove that
5
Bollinger gained access to his victims, in part, by providing
them with food and clothing. 1
Bollinger moved to dismiss the indictment. He argued that
Section 2423(c) is unconstitutional because it criminalizes non-
commercial activity and thus exceeds Congress’s authority to
regulate commerce under the Foreign Commerce Clause. In reply,
the government disagreed with Bollinger’s interpretation of
Congress’s foreign commerce powers. It further argued that
independent constitutional authority derived from Congress’s
power to implement an international treaty signed by the United
States, namely, the Optional Protocol to the United Nations
Convention on the Rights of the Child on the Sale of Children,
Child Prostitution and Child Pornography, adopted May 25, 2000,
T.I.A.S. 13,095, 2171 U.N.T.S. 227 [hereinafter Optional
Protocol].
The district court denied Bollinger’s motion to dismiss.
The court declined to decide whether the Foreign Commerce Clause
sanctioned Section 2423(c), but it agreed with the government
that Congress had authority under the Necessary and Proper
Clause to enact the statute as a rational means to implement the
Optional Protocol.
1
Section 2246 broadly defines “sexual act[s].” Bollinger
does not dispute that his conduct fell within that definition.
6
Bollinger then entered a conditional guilty plea pursuant
to Federal Rule of Criminal Procedure 11(a)(2), in which he
reserved his right to appeal the denial of his motion to
dismiss.
B.
Bollinger’s presentence report (“PSR”) calculated a
preliminary sentencing guideline term of life in prison, based
on a total offense level of 43 and a criminal history category
of I. The offense level included an 8-point enhancement based
on the aggravated nature of the victim’s ages, pursuant to
U.S.S.G. § 2G1.3(b)(5). The probation officer correctly noted,
however, that the two offenses carried a statutory maximum term
of 30 years each. See U.S.S.G. § 5G1.1(a).
In further preparation for sentencing, the government
submitted victim-impact statements from the four abused girls
(denoted as CV1, CV2, CV3, and CV4) and their family members.
CV2 wrote a letter stating:
I feel ashamed of myself, my family and my friends.
Everybody is pointing fingers at me. . . . I am
unable to look at people in the eyes. . . . I always
have tears in my eyes. For me, I no longer exist.
J.A. 666. Similarly, CV3 stated that she was “ashamed” and that
her “future is ruined.” J.A. 670. As CV3 concluded:
As for me, the best solution is to end my life. I
don’t like to talk about that because every time, I
talk about it, it rips out my guts, my dreams are
ruined, and it takes a toll on me. Since then, I can
7
no longer do as well in school as I used to before, I
can’t even explain it to my family.
Id. CV4, meanwhile, wrote that her family was humiliated and
that she spent little time outside of her home, an account
corroborated by a letter from her uncle stating that the family
was “like scars on the area.” J.A. 667, 669. Finally, CV1’s
mother reported that she and her daughter “have been living in
the woods as a result” of the abuse. J.A. 668.
At the sentencing hearing, the district judge agreed with
the PSR’s calculation of a preliminary advisory term of life in
prison, limited by the statutory maximum of 30 years for each of
the two counts. The court proceeded to hear testimony regarding
the sentencing factors codified in 18 U.S.C. § 3553(a). One
witness, Marie Major, ran a Haitian orphanage near the Village
of Hope. She testified that it is not unusual for impoverished
girls in the area to offer themselves sexually in exchange for
food. Major also testified that Bollinger and his wife provided
generous and consistent support to the orphanage, including food
and clothing. Another witness, Dr. William Tyson, testified
that he believed Bollinger was not a pedophile and that the
minister was a good candidate for treatment with a low risk of
recidivism. During his allocution, Bollinger acknowledged that
he “hurt a lot of girls” and stated that he “wanted to get help
8
so badly that [he] was willing to take the risk” of punishment
for his conduct. J.A. 243-44.
Defense counsel asked the court to impose a five-year
prison sentence, representing a 55-year downward variance from
the advisory sentencing range. Counsel observed that the
minister’s life had been one of service, that he voluntarily
reported his offenses, that he had subsequently undergone
extensive treatment and therapy for his addiction, and that
there was no specific risk he would reoffend. Leniency, defense
counsel urged, would encourage “every sex offender out there
lurking in the shadows” to similarly self-report. J.A. 250.
Bollinger’s attorney also noted the stringent conditions that
could be imposed as part of supervised release to guard against
reoffending. Finally, counsel pointed out that Bollinger’s age
and poor health 2 meant it was unlikely that he would survive a
lengthy sentence.
The government asked the court to sentence Bollinger to 25-
years in prison – a 35-year downward variance from the advisory
term. Bollinger, the government argued, had yet to show any
“genuine remorse” and had not apologized to the victims. J.A.
259. The government further maintained that a five-year
2
The PSR described Bollinger’s medical history. He suffers
from coronary artery disease (with an implanted stent), high
blood pressure, and high cholesterol, among other conditions.
9
sentence would be “an insult to the victims” and would pay
insufficient heed to the statutory sentencing factors that
include the seriousness of the offense, the need to promote
respect for the law, and the need to deter criminal conduct.
J.A. 260.
The court agreed with the government’s recommendation and
sentenced Bollinger to 25 years. The court stated that it had
considered the sentencing factors and detailed why it believed
that a greater variance from the advisory term was not justified
on the facts. The court’s written Statement of Reasons cited
the following:
The Court found the following mitigating factors: The
defendant self-reported his crimes during a marital-
counseling therapy session. The defendant has pursued
treatment, rehabilitation since his release [from]
Sante treatment center. The defendant has
demonstrated leadership roles in Sex Addicts Anonymous
meetings. The defendant was crime-free from the point
of admission until his arrest. The defendant is 68
years old and any sentence imposed takes on greater
significance due to his advanced age. The Court also
noted the defendant’s prior pastoral work, mission
work, substantial family and friend support and depth
of support.
In terms of aggravating factors the Court found the
defendant’s crimes to be among the most heinous the
Court has encountered. Especially troublesome, were
the defendant’s level of abuse of trust, the age of
the child victims, the poverty stricken conditions in
Haiti and the defendant’s persistence in maintaining
that the child victims seduced him. Specifically, the
Court rejected defendant’s statements that the child
victims seduced him and stated that the idea was
preposterous. The Court determined that the victims
are tragically damaged as a result of defendant’s
10
actions. The Court mentioned victims’ impact
statements and how they [and] their families continue
to be affected.
J.A. 687.
Bollinger timely appealed.
II.
On appeal, Bollinger challenges both the constitutionality
of 18 U.S.C. § 2423(c) and the length of the prison sentence he
received. We consider each in turn.
A.
We review de novo a district court’s denial of a motion to
dismiss where the denial depends solely on a question of law.
United States v. Bridges, 741 F.3d 464, 467 (4th Cir. 2014).
Our review of a constitutional question recognizes, however,
that “[e]very statute is presumed to be constitutional.” Munn
v. Illinois, 94 U.S. 113, 123 (1876). As such, we will
“invalidate a congressional enactment only upon a plain showing
that Congress has exceeded its constitutional bounds.” United
States v. Morrison, 529 U.S. 598, 607 (2000).
1.
18 U.S.C. § 2423(c) provides that “[a]ny United States
citizen or alien admitted for permanent residence who travels in
foreign commerce or resides, either temporarily or permanently,
in a foreign country, and engages in any illicit sexual conduct
11
with another person shall be fined under this title or
imprisoned not more than 30 years, or both.” A different
section of the statute, 18 U.S.C. § 2423(f), defines illicit
sexual conduct as either (1) a non-commercial sexual act, as
defined in 18 U.S.C. § 2246, with a person under 18 years of age
that would be a violation of a separate part of the code
proscribing sexual abuse, or (2) any commercial sex act, as
defined in 18 U.S.C. § 1591, with a person under 18 years of
age. Authorities charged Bollinger with non-commercial illicit
conduct.
Congress first proposed the law as part of the Sex Tourism
Prohibition Improvement Act of 2002. See H.R. Rep. No. 107–525
(2002), 2002 WL 1376220 at *1. The accompanying “Constitutional
Authority Statement” identified the Commerce Clause as
permitting the legislation. Id. at *5. The provision’s
purpose, according to the House Report, was “to make it a crime
for a U.S. citizen to travel to another country and engage in
illicit sexual conduct with minors.” Id. Regarding the need
for such legislation, the House Report noted that “ineffective
law enforcement, lack of resources, corruption, and generally
immature legal systems” of many countries are barriers to
effective prosecution. Id. at *3. To that end, Congress wanted
to eliminate the existing requirement under 18 U.S.C. § 2423(b)
that a U.S. citizen had to travel with the intent to engage in
12
illicit sexual conduct before he/she could be criminally liable.
Id. at *3, *5.
The proposed legislation passed the House but failed the
Senate. Shortly thereafter, the same language was incorporated
into different legislation – the Prosecutorial Remedies and
Other Tools to End the Exploitation of Children Act of 2003 (the
“PROTECT Act”). See H.R. Conf. Rep. No. 108–66 (2003),
reprinted in 2003 U.S.C.C.A.N. 683, 683, 2003 WL 1862082 at *5.
The Report accompanying that legislation, however, does not
include the prior reference to constitutional authority. See
id.
The government argues that Congress had two sources of such
authority. First, it reasons that the Foreign Commerce Clause
permits the criminalization of non-commercial sexual conduct
after travel in foreign commerce because the law regulates the
channels and/or instrumentalities of commerce, and because the
underlying non-commercial activity has a constitutionally
sufficient commercial effect. Alternatively, the government
asks us to uphold the district court’s conclusion that the
statutory section was validly enacted as a necessary and proper
implementation of the Optional Protocol to combat the commercial
sexual exploitation of children.
Because we agree that the Foreign Commerce Clause
authorizes the law, we do not reach the question of whether
13
Congress’s treaty-implementation powers provide additional
license. 3
2.
It is a well-worn yet ever-vital maxim that “[t]he
Constitution creates a Federal Government of enumerated powers.”
United States v. Lopez, 514 U.S. 549, 552 (1995). Article I,
section 8, clause 3 of the Constitution specifically empowers
Congress “[t]o regulate Commerce with foreign Nations, and among
3 Our decision not to consider whether the enactment of
Section 2423(c) was a valid exercise of Congress’s power to
implement an international treaty is grounded in four primary
considerations. First, unlike with the Foreign Commerce Clause,
a danger exists in stretching Congress’s treaty-implementing
powers to a point where they transgress principles of federalism
and interfere with state police power. Because Congress may
enact legislation regulating domestic affairs pursuant to
international treaties, courts should tread carefully in
expanding that power. See Bond v. United States, --- U.S. ---,
134 S. Ct. 2077, 2087-88 (2014) (describing the potential
federalism issues and declining to reach the question of whether
domestic legislation implementing a chemical weapons treaty was
constitutionally valid). Second, the circuits to have
considered the constitutionality of the PROTECT Act have done so
in the context of the Foreign Commerce Clause. There is thus
more developed jurisprudence to draw from in considering the
statute. Third, Congress chose not to expressly invoke its
treaty-implementing powers in enacting Section 2423(c).
Instead, the forerunner to the legislation only mentioned the
Commerce Clause. Fourth and finally, this case provides an
opportunity for this Circuit to provide needed clarity regarding
the scope of Congress’s authority under the Foreign Commerce
Clause, a provision we have only discussed once. Developing
that jurisprudence is particularly important in an age of
increasingly permeable national borders, economic
interdependence, inexpensive international travel, and the
resulting illicit industries like sex tourism and child
trafficking.
14
the several States, and with the Indian Tribes.” So long as
Congress enacts legislation pursuant to such authority, the
legislation may have extraterritorial application. See Naomi
Harlin Goodno, When the Commerce Clause Goes International: A
Proposed Legal Framework for the Foreign Commerce Clause, 65
Fla. L. Rev. 1139, 1144, 1214 (2013) (summarizing the “hundreds
of federal laws” that regulate the conduct of U.S. citizens
abroad). 4 The question this case presents is simply whether the
“power to regulate Commerce with foreign Nations” – the Foreign
Commerce Clause - permits Congress to prohibit a person from
engaging in illicit non-commercial sexual conduct after he or
she has traveled in foreign commerce.
Despite rich case law interpreting the Interstate Commerce
Clause, the Supreme Court has yet to examine the Foreign
Commerce Clause in similar depth, and has yet to articulate the
constitutional boundaries beyond which Congress may not pass in
regulating the conduct of citizens abroad. This Court,
meanwhile, has only mentioned the Foreign Commerce Clause in a
single case regarding trademark regulations. Int’l Bancorp, LLC
4 As another example of authority for many laws with
extraterritorial application, the Constitution gives Congress
the power “[t]o define and punish . . . Felonies committed on
the high Seas, and Offences against the Law of Nations;” and
“[t]o make all Laws which shall be necessary and proper” to
carry out the “foregoing Powers.” U.S. Const. art. I, § 8, cls.
10, 18.
15
v. Societe des Bains de Mer et du Cercle des Etrangers a Monaco,
329 F.3d 359 (4th Cir. 2003).
We must thus undertake three primary inquiries. First, we
must decide whether to import the Supreme Court’s interstate
jurisprudence into the foreign context. Second, if not, we must
independently interpret the scope of the foreign clause,
examining the limitations that inhere in the requirements that
any legislation must “regulate Commerce” and that the commerce
must be “with foreign Nations.” Finally, we must determine
whether Section 2423(c) falls within that scope.
a.
Broadly speaking, the Supreme Court has paid substantial
deference throughout our history to Congress’s power to
legislate pursuant to the Interstate Commerce Clause, upholding
the regulation of activities as diverse as transporting wives
across state lines for the purpose of polygamy (Cleveland v.
United States, 329 U.S. 14 (1946)), racial discrimination by
local restaurants and motels (Katzenbach v. McClung, 379 U.S.
294 (1964) (restaurants); Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964) (hotels)), and the growing of wheat
and marijuana for personal consumption (Wickard v. Filburn, 317
U.S. 111 (1942) (wheat); Gonzales v. Raich, 545 U.S. 1 (2005)
(marijuana)).
16
Yet Congress’s power is not without “outer limits.” Lopez,
514 U.S. at 556-57. In Lopez, the Supreme Court established the
modern framework to recognize those confines, holding that
Congress is limited to regulating three broad categories of
interstate activity: (1) “the use of the channels of interstate
commerce,” (2) “the instrumentalities of interstate commerce, or
persons or things in interstate commerce,” and (3) “activities
that substantially affect interstate commerce.” Id. at 558-59.
The Court in Lopez concluded that the regulation of guns in
school zones did not fit within those categories, in part
because such regulation did not relate to an economic activity
that substantially affected interstate commerce. Id. at 567.
Similarly, the Court subsequently held that Congress could not
provide a federal civil remedy for victims of gender-motivated
violence because the regulated conduct was entirely non-
economic. Morrison, 529 U.S. at 617. Regarding Lopez’s third
class of permissible regulations – those that “substantially
affect” interstate commerce – the Court in Morrison observed
that “in those cases where we have sustained federal regulation
of intrastate activity based upon the activity’s substantial
effects on interstate commerce, the activity in question has
been some sort of economic endeavor.” Id. at 611; see also id.
at 613 (“[T]hus far in our Nation’s history our cases have
17
upheld Commerce Clause regulation of intrastate activity only
where that activity is economic in nature.”)
In the case at hand, Bollinger argues that we should apply
a similar analysis to Section 2423(c) insofar as it regulates
only non-commercial conduct. 5 As he sees it, “[i]f gender-
motivated violence like . . . in Morrison is not economic
activity, neither is the non-commercial sexual abuse of a minor
prohibited by §§ 2423(c) and (f)(1).” Br. of Appellant 40.
Bollinger’s argument, however, relies on the threshold
assumption that the Supreme Court’s interstate jurisprudence
should be wholly transposed into the foreign context. That
assumption is belied by decades of Supreme Court cases that have
consistently interpreted Congress’s interstate authority against
the backdrop of, and as constrained by, federalism concerns that
are inapposite in the international arena. In NLRB v. Jones &
Laughlin Steel Corp., for instance, the Court stated that
5Bollinger states in the first sentence of his brief’s
Summary of the Argument that he is mounting both a facial and
as-applied challenge to the statute. Br. of Appellant 15. But
he fails to then challenge the statute as applied specifically
to his conduct. Instead, as the government correctly points
out, the minister argues that “there are no circumstances under
which Congress could constitutionally proscribe non-economic
conduct outside the territory of the United States.” Br. of
Resp’t 29. Because Bollinger mounts a facial challenge, we must
uphold the statute if there is any set of circumstances under
which it is valid. United States v. Stevens, 559 U.S. 460, 472
(2010).
18
“[u]ndoubtedly the scope of [Congress’s Commerce Clause] power
must be considered in the light of our dual system of government
and may not be extended so as to . . . obliterate the
distinction between what is national and what is local and
create a completely centralized government.” 301 U.S. 1, 37
(1937); see also Hodel v. Va. Surface Min. & Reclamation Ass’n,
Inc., 452 U.S. 264, 309 (1981) (Rehnquist, J., concurring)
(describing the federalism concerns animating the Court’s
interstate commerce cases).
More recent cases have similarly invoked federalism themes
in describing the limitations on Congress’s interstate power.
In Lopez, for instance, the Supreme Court framed its discussion
of such limits by invoking James Madison’s constitutional adage:
“The powers delegated by the proposed Constitution to the
federal government are few and defined. Those which are to
remain in the State governments are numerous and indefinite.”
514 U.S. at 552 (quoting The Federalist No. 45, at 292-93
(James Madison) (Clinton Rossiter ed., 1961)). As the Court
continued, “a healthy balance of power between the States and
the Federal Government will reduce the risk of tyranny and abuse
from either front.” Id. (quoting Gregory v. Ashcroft, 501 U.S.
452, 458 (1991)). Finally, Lopez’s conclusion that the
regulation of school-zone firearms exceeded Congress’s power was
also couched in federalism themes. The Court observed that the
19
only way to find that the possession of firearms in school zones
had a “substantial effect” on interstate commerce would be “to
pile inference upon inference in a manner that would bid fair to
convert congressional authority under the Commerce Clause to a
general police power of the sort retained by the States.” Id.
at 567.
Five years later in Morrison, the Court again stated that
its decision rested, at least in part, on respect for state
sovereignty: “Indeed, we can think of no better example of the
police power, which the Founders denied the National Government
and reposed in the States, than the suppression of violent crime
and vindication of its victims.” 529 U.S. at 618. In that
light, the Court concluded that the gender-motivated violence at
issue did not have a substantial enough effect on interstate
commerce to justify federal regulation. Id. at 617-18; see also
Nat’l Fed’n of Indep. Bus. v. Sebelius, -- U.S. --, 132 S. Ct.
2566, 2578 (2012) (noting that Congress’s interstate power must
be “read carefully to avoid creating a general federal authority
akin to the police power”).
Significantly, the Court failed to specifically reference
the Foreign Commerce Clause in its interstate cases. Instead,
the Court has remarked in a footnote that “[i]t has never been
suggested that Congress’ power to regulate foreign commerce
could be” limited by “considerations of federalism and state
20
sovereignty.” Japan Line, Ltd. v. Cnty. of L.A., 441 U.S. 434,
448 n.13 (1979). Indeed, while “the power to regulate commerce
is conferred by the same words of the commerce clause with
respect to both foreign commerce and interstate commerce . . . ,
the power when exercised in respect of foreign commerce may be
broader than when exercised as to interstate commerce.” Atl.
Cleaners & Dyers v. United States, 286 U.S. 427, 434 (1932).
This Court, in its single foray into the Foreign Commerce
Clause, has similarly observed that the federalism concerns that
constrain Congress’s power to regulate interstate commerce do
not impose similar limitations on foreign regulation. Int’l
Bancorp, 329 F.3d at 368. As we specifically remarked regarding
Lopez’s third category of permissible regulations – those that
have a substantial effect on interstate commerce:
The substantial effects test is not implicated here at
all. The Supreme Court has articulated the
substantial effects test to ensure that Congress does
not exceed its constitutional authority to regulate
interstate commerce by enacting legislation that,
rather than regulating interstate commerce, trammels
on the rights of states to regulate purely intra-state
activity for themselves pursuant to their police
power. . . . Although the Constitution, Art. I, § 8,
cl. 3, grants Congress the power to regulate commerce
“with foreign Nations” and “among the several States”
in parallel phrases, there is evidence that the
Founders intended the scope of the foreign commerce
power to be the greater.
Id. (internal citations omitted).
21
The conclusion that the Foreign Commerce Clause demands its
own interpretative framework is only further confirmed by the
Supreme Court’s distinct treatment of the Indian Commerce
Clause. Despite using language that parallels the interstate
and foreign clauses (giving Congress the power to “regulate
Commerce with . . . the Indian Tribes”), the provision has been
interpreted as providing Congress with powers that are more
expansive than in the interstate context. Indeed, the “Indian”
clause was originally drafted to allow Congress to “regulate
affairs with the Indians.” 2 The Records of the Federal
Convention of 1787 at 321, 324 (Max Farrand ed., rev. ed. 1966).
It was later changed by replacing the word “affairs” with
“commerce.” Notwithstanding the change in language, the Supreme
Court has interpreted the provision as investing Congress with
broad general powers to regulate the affairs of Native
Americans. See Cotton Petroleum Corp. v. New Mexico, 490 U.S.
163, 192 (1989). The Court has also expressly declined to
impose its interstate commerce framework on tribal legislation,
observing:
It is also well established that the Interstate
Commerce and Indian Commerce Clauses have very
different applications. In particular, while the
Interstate Commerce Clause is concerned with
maintaining free trade among the States even in the
absence of implementing federal legislation, the
central function of the Indian Commerce Clause is to
provide Congress with plenary power to legislate in
the field of Indian affairs. The extensive case law
22
that has developed under the Interstate Commerce
Clause, moreover, is premised on a structural
understanding of the unique role of the States in our
constitutional system that is not readily imported to
cases involving the Indian Commerce Clause. Most
notably, as our discussion of Cotton’s “multiple
taxation” argument demonstrates, the fact that States
and tribes have concurrent jurisdiction over the same
territory makes it inappropriate to apply Commerce
Clause doctrine developed in the context of commerce
“among” States with mutually exclusive territorial
jurisdiction to trade “with” Indian tribes.
Id.; see also United States v. Lara, 541 U.S. 193, 200 (2004).
The unique approach to tribal affairs, the Court has stated, is
founded on the federal government’s special relationship with
tribes and the idea that tribes are a “dependent sovereign” – a
status that justifies broader regulation. See Lara, 541 U.S. at
200, 202-03.
Similarly, the Foreign Commerce Clause implicates concerns
that are different from those present in interstate and tribal
regulation. It thus requires its own interpretative framework,
and we must independently determine what limits it imposes on
the federal legislative power.
b.
The regulation of commerce with foreign nations, like
matters of foreign affairs and foreign relations more generally,
requires a unitary federal voice and expansive authority. As
the Supreme Court stated nearly eighty years ago in United
States v. Curtiss-Wright Export Corp., such broad powers are
23
suggested by the very nature of federal authority over foreign
affairs:
The broad statement that the federal government can
exercise no powers except those specifically
enumerated in the Constitution, and such implied
powers as are necessary and proper to carry into
effect the enumerated powers, is categorically true
only in respect of our internal affairs. In that
field, the primary purpose of the Constitution was to
carve from the general mass of legislative powers then
possessed by the states such portions as it was
thought desirable to vest in the federal government,
leaving those not included in the enumeration still in
the states. That this doctrine applies only to powers
which the states had is self-evident. And since the
states severally never possessed international powers,
such powers could not have been carved from the mass
of state powers but obviously were transmitted to the
United States from some other source.
299 U.S. 304, 315-16 (1936) (internal citation omitted); see
also Perez v. Brownell, 356 U.S. 44, 57 (1958) (“Although there
is in the Constitution no specific grant to Congress of power to
enact legislation for the effective regulation of foreign
affairs, there can be no doubt of the existence of this power in
the law-making organ of the Nation.”); United States v. Belmont,
301 U.S. 324, 331 (1937) (observing that “complete power over
international affairs is in the national government”). And as
the Supreme Court more recently remarked regarding Congress’s
foreign powers, “[i]n a world that is ever more compressed and
interdependent, it is essential the congressional role in
foreign affairs be understood and respected.” Zivotofsky v.
Kerry, -- U.S. --, 135 S. Ct. 2076, 2090 (2015) (also listing
24
the varied constitutional powers undergirding Congress’s role in
foreign affairs). Thus, there is good reason to expansively
construe Congress’s legislative authority when it comes to
matters that implicate the federal government’s regulatory power
over foreign commerce. 6 See United States v. Bredimus, 352 F.3d
200, 207-08 (5th Cir. 2003) (upholding Section 2423(b) of the
PROTECT Act after observing that Congress deserves greater
deference when dealing with foreign commerce).
It is through that lens that we must determine what
limitations inhere in the Foreign Commerce Clause’s requirements
that any congressional action must (1) “regulate Commerce” and
(2) concern commerce “with foreign Nations.” Most important, as
in the interstate context, we must decide how directly or
indirectly an activity must affect such commerce before Congress
may regulate it.
As to the meaning of “commerce,” the definition first
espoused by the Supreme Court in Gibbons v. Ogden continues in
currency today:
6 Invoking Curtiss-Wright, the Ninth Circuit has briefly
suggested that Section 2423(c) could be valid pursuant to
“Congress’s plenary authority over foreign affairs.” United
States v. Clark, 435 F.3d 1100, 1109 n.14 (9th Cir. 2006). Like
that circuit, we acknowledge that possibility but need not
anchor our holding in such potentially unstable jurisprudential
ground. Instead, as discussed further below, we conclude that
the statutory section is constitutional as an exercise of
Congress’s enumerated power to regulate foreign commerce.
25
Commerce, undoubtedly, is traffic, but it is something
more: it is intercourse. It describes the commercial
intercourse between nations, and parts of nations, in
all its branches, and is regulated by prescribing
rules for carrying on that intercourse.
22 U.S. 1, 189-90 (1824); see also Lopez, 514 U.S. at 552-53
(invoking Gibbons’s definition of commerce). That definition
applies equally to the interstate and foreign contexts,
capturing a wide range of market-based activities, including
trade, production, transportation of goods, regulation of
thoroughfares, the setting of wages, other commercial
transactions and services, and related endeavors. See William
W. Crosskey, 1 Politics and the Constitution in the History of
the United States 117 (1953) (conducting an exhaustive
historical study of the meaning of “Commerce” at the founding
and concluding that it captured “every species of gainful
activity carried on by Americans with foreign Nations,” “among
the several States,” and “with the Indian Tribes” (internal
quotation marks omitted)).
Regarding the nature of Congress’s power over such
commerce, the Supreme Court continued:
It is the power to regulate; that is, to prescribe the
rule by which commerce is to be governed. This power,
like all others vested in Congress, is complete in
itself, may be exercised to its utmost extent, and
acknowledges no limitations, other than are prescribed
in the constitution. . . . If, as has always been
understood, the sovereignty of Congress, though
limited to specified objects, is plenary as to those
objects, the power over commerce with foreign nations,
26
and among the several States, is vested in Congress as
absolutely as it would be in a single government,
having in its constitution the same restrictions on
the exercise of the power as are found in the
constitution of the United States.
Gibbons, 22 U.S. at 196-97; see also Crosskey, supra, at 129-30
(noting that commercial regulation was understood at the
founding to extend even to naturalization laws because of the
effect such laws could have on the manufacturing industry).
The second textual limitation - the fact that commerce must
be “with foreign Nations” - requires a nexus between the United
States and a foreign country. See Goodno, supra, at 1202
(observing that dictionaries contemporary to the Constitutional
Convention defined “with” as “noting the means” or “noting
connection” (internal quotation marks omitted)). The use of the
word “with” in the foreign clause, instead of the word “among”
as used in the interstate clause, merely suggests the obvious:
Congress cannot regulate commerce “among” foreign nations
because other nations do not submit their sovereignty to our
regulatory powers.
Bollinger, however, goes a step further in suggesting that
the word “with” “presupposes the exclusion of commerce internal
to foreign nations.” Br. of Appellant 30. As Bollinger argues,
although Congress may regulate conduct inside a state if the
conduct has a substantial effect on interstate commerce, it
cannot regulate conduct that occurs inside another country.
27
That argument, however, overlooks the fact that when a U.S.
citizen acts in a foreign country, the United States, by
extension of its citizenship, also engages in the activity with
that country. Thus, a regulation of a commercial interaction
between a U.S. citizen and another nation is a regulation of
commerce with that nation, even if the interaction is entirely
within the other nation’s territory.
In essence, Bollinger leans on principles of national
sovereignty to urge that Congress should be more restricted in
regulating the conduct of U.S. citizens inside other countries.
The nationality principle of international law, however,
“permits a country to apply its statutes to extraterritorial
acts of its own nationals” without infringing on the other
nation’s sovereignty. United States v. Clark, 435 F.3d 1100,
1106 (9th Cir. 2006) (quoting United States v. Hill, 279 F.3d
731, 740 (9th Cir. 2002)); see also United States v. Yousef, 327
F.3d 56, 91 n.24 (2d Cir. 2003). As the Supreme Court observed
long ago, “While the legislation of the Congress, unless the
contrary intent appears, is construed to apply only within the
territorial jurisdiction of the United States, the question of
its application, so far as citizens of the United States in
foreign countries are concerned, is one of construction, not of
legislative power.” Blackmer v. United States, 284 U.S. 421,
437 (1932). The U.S. government can, for instance, prohibit
28
citizens from spending money inside Cuba or recruiting
terrorists in Syria without violating principles of sovereignty,
provided that valid constitutional authority underlies the
legislation. Furthermore, nothing about Section 2423(c)
restricts other nations from regulating sexual activity or child
abuse inside their borders as they see fit.
With those considerations in mind, the pivotal question in
this case is how directly an activity must affect foreign
commerce for it to be a proper subject of congressional
regulation. The small number of courts to have considered the
reach of Congress’s Foreign Commerce Clause authority have
provided three possible answers. First, some courts have
imported the Lopez categories directly into the foreign context.
See United States v. Pendleton, 658 F.3d 299, 308 (3d Cir.
2011); United States v. Homaune, 898 F. Supp. 2d 153, 159
(D.D.C. 2012) (applying the interstate cases to the question of
whether the Foreign Commerce Clause sanctioned the International
Parental Kidnapping Crime Act); see generally United States v.
Al-Maliki, 787 F.3d 784, 793 (6th Cir. 2015) (expressing
skepticism as to whether Congress’s foreign commerce power is
more expansive than its interstate regulatory authority).
Second, other courts have applied Lopez generally but recognized
that Congress has greater power to regulate foreign commerce.
See United States v. Cummings, 281 F.3d 1046, 1049 & n.1 (9th
29
Cir. 2002); Bredimus, 352 F.3d at 204-08; United States v.
Flath, 845 F. Supp. 2d 951, 955 (E.D. Wis. 2012). Third, two
circuits have developed a distinctive standard, holding that
Congress has authority to legislate under the Foreign Commerce
Clause when the text of a statute “has a constitutionally
tenable nexus with foreign commerce.” Clark, 435 F.3d at 1114
(upholding Section 2423(c)’s criminalization of commercial
sexual acts with minors abroad); see also United States v.
Bianchi, 386 F. App’x 156, 161-62 (3d Cir. 2010) (unpublished)
(extending the Ninth Circuit’s reasoning in Clark to non-
commercial illicit sexual conduct). 7
We agree that the Lopez categories provide a useful
starting point in defining Congress’s powers under the Foreign
7
The Ninth and Third Circuits have thus both applied Lopez
to the Foreign Commerce Clause (Cummings and Pendleton) and
developed an independent framework that moves away from the
Supreme Court’s interstate cases (Clark and Bianchi). The Ninth
Circuit’s decision in Clark is particularly instructive. The
question the court considered was whether the commercial sex act
prong of § 2423(c) – proscribing “any commercial sex act . . .
with a person under 18 years of age” - was constitutional. The
court began by noting, consistent with the discussion above,
that the Supreme Court’s interstate commerce jurisprudence did
not fit the foreign context. See Clark, 435 F.3d at 1116 (“At
times, forcing foreign commerce cases into the domestic commerce
rubric is a bit like one of the stepsisters trying to don
Cinderella’s glass slipper.”). The court then concluded that
the commercial-sex component of the statute was constitutional
because it had a “constitutionally tenable nexus” with foreign
commerce. Id. at 1114. But critical to the Ninth Circuit’s
holding, and different from this case, was the economic nature
of the regulated conduct at issue (commercial sex).
30
Commerce Clause. Regarding the first two categories, Congress
clearly may regulate (1) “the use of the channels of [foreign]
commerce,” and (2) “the instrumentalities of [foreign] commerce,
or persons or things in [foreign] commerce.” Lopez, 514 U.S. at
558. We continue to believe, however, that the third Lopez
category – permitting the regulation of “activities that
substantially affect interstate commerce” – is unduly demanding
in the foreign context. See Int’l Bancorp, 329 F.3d at 368
(“The Supreme Court has articulated the substantial effects test
to ensure that Congress does not exceed its constitutional
authority to regulate interstate commerce by enacting
legislation that, rather than regulating interstate commerce,
trammels on the rights of states to regulate purely intra-state
activity for themselves pursuant to their police power.”).
Instead of requiring that an activity have a substantial
effect on foreign commerce, we hold that the Foreign Commerce
Clause allows Congress to regulate activities that demonstrably
affect such commerce. Requiring a showing of demonstrable
effect, of course, still requires that the effect be more than
merely imaginable or hypothetical. A prohibition on littering
in Istanbul, for instance, may not pass constitutional muster.
And under the rational basis standard, the question reviewing
courts must ask is whether Congress had a rational basis to
believe that the regulated activity demonstrably affects foreign
31
commerce. See Raich, 545 U.S. at 22 (“In assessing the scope of
Congress’ authority under the Commerce Clause, . . . [w]e 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.”
(quoting Lopez, 514 U.S. at 557)); see also Heart of Atlanta
Motel, 379 U.S. at 258 (asking whether Congress had a “rational
basis for finding that racial discrimination by motels affected
commerce”); see generally Perez, 356 U.S. at 58 (“[A] rational
nexus must exist between the content of a specific power in
Congress and the action of Congress in carrying that power into
execution.”).
3.
Viewed through that framework, does Section 2423(c)
regulate the channels and/or instrumentalities of foreign
commerce? Alternatively, does it regulate activity that
demonstrably affects foreign commerce?
a.
The government argues that Section 2423(c)’s requirement
that an individual “travel[] in foreign commerce” before
engaging in illicit conduct is enough of a constitutional hook
to establish a regulation of the channels and/or
instrumentalities of foreign commerce. Under that theory, the
act of foreign commercial travel opens the door to the
32
regulation of the ends of that travel (intended or not) in order
to keep the commercial channels free from illicit uses and to
control the instrumentalities of commerce (in this case,
persons). See Pendleton, 658 F.3d at 311 (upholding Section
2423(c) because it expressly requires that an individual travel
in foreign commerce before engaging in the proscribed conduct);
Flath, 845 F. Supp. 2d at 955-56 (observing that the foreign
travel requirement “alone is sufficient to bring [a] defendant’s
subsequent illicit sexual conduct within Congress’s power to
regulate under the Foreign Commerce Clause”). Framed slightly
differently, Section 2423(c) can be viewed as stating a
condition of traveling abroad in commerce, namely, that a
citizen may not abuse children once in the foreign country.
Under that reading, the statutory language establishes a “rule[]
for carrying on [commercial] intercourse.” See Gibbons, 22 U.S.
at 189-90.
Such a holding, however, would provide little limit on what
foreign conduct Congress could regulate, insofar as Congress
could criminalize practically anything that a citizen does
abroad after traveling. Bollinger further argues that were
Congress to pass similar legislation in the interstate context –
criminalizing such non-commercial conduct after the act of
travel in interstate commerce (without any necessary showing of
illicit purpose during the travel) – it would run afoul of the
33
core limits on congressional power imposed by cases like
Morrison and Lopez.
In reply, the government correctly notes that this Court
and others have upheld similar interstate legislation that
criminalizes non-commercial activity after the mere act of
travel between states. The Sex Offender Registration and
Notification Act (“SORNA”), 18 U.S.C. § 2250(a), establishes
criminal penalties for sex offenders who travel in interstate or
foreign commerce and thereafter fail to register as required.
The law requires no illicit intent motivating the travel and is
thus broadly analogous to Section 2423(c). See Pendleton, 658
F.3d 299, 309-10 (observing that the “same rationale” that
establishes SORNA’s constitutionality also applies to Section
2423(c)).
This Court has concluded that SORNA is constitutional
because it regulates use of the channels and the
instrumentalities of interstate commerce. United States v.
Gould, 568 F.3d 459, 471-72 (4th Cir. 2009). Regarding the
channels of commerce, Gould held that the law fit within
congressional authority “to keep [such channels] . . . free from
immoral and injurious uses.” Id. at 471 (quoting Caminetti v.
United States, 242 U.S. 470, 491 (1917)). As to the
instrumentalities of commerce, the Court remarked that “Congress
also has the authority to regulate persons in interstate
34
commerce, especially persons who move from the State of
conviction to another State and there fail to register, as they
use instrumentalities of interstate commerce.” Id. (internal
quotation marks omitted).
Other courts to have considered SORNA’s constitutionality
have reached similar conclusions for similar reasons. See
United States v. Ambert, 561 F.3d 1202, 1210 (11th Cir. 2009)
(observing that the “power to regulate the channels and
instrumentalities of commerce includes the power to prohibit
their use for harmful purposes, even if the targeted harm itself
occurs outside the flow of commerce and is purely local in
nature” (internal quotation marks omitted)); United States v.
Hinckley, 550 F.3d 926, 939-40 (10th Cir. 2008), abrogated on
other grounds by Reynolds v. United States, -- U.S. --, 132 S.
Ct. 975 (2012); United States v. Shenandoah, 595 F.3d 151, 160-
61 (3d Cir. 2010), abrogated on other grounds by Reynolds, 132
S. Ct. 975; United States v. Dixon, 551 F.3d 578, 582-83 (7th
Cir. 2008), rev’d on other grounds sub nom. Carr v. United
States, 560 U.S. 438 (2010); United States v. May, 535 F.3d 912,
921 (8th Cir. 2008), abrogated on other grounds by Reynolds, 132
S. Ct. 975.
Up against that weight of authority, Bollinger argues that
SORNA has been the subject of some judicial and scholarly
criticism. Br. of Appellant 45 (citing United States v.
35
Vasquez, 611 F.3d 325, 337 (7th Cir. 2010) (Manion, J.,
dissenting); Corey Reyburn Yung, One of These Laws is Not Like
the Others: Why [SORNA] Raises New Constitutional Questions, 46
Harv. J. on Legis. 369 (2009)). The problem with SORNA,
Bollinger argues, is that it requires no finding of improper
intent at the time of interstate travel. It is thus unlike
other statutes that the Supreme Court has upheld that require a
showing of illicit purpose when crossing state lines. In
Caminetti v. United States, for instance, the Court upheld the
constitutionality of the Mann Act, which prohibited the
transportation of women for the purpose of “prostitution,
debauchery, and other immoral practices.” 242 U.S. at 486. The
legislation, the Court concluded, was a permissible way “to keep
the channels of interstate commerce free from immoral and
injurious uses.” Id. at 491. Similarly, courts have long held
that “Congress has plenary power to reach and punish the
movement in interstate commerce of those who seek to accomplish
unlawful purposes.” Bredimus, 352 F.3d at 207 (emphasis added);
see also United States v. Bailey, 112 F.3d 758, 765 (4th Cir.
1997); United States v. Tykarsky, 446 F.3d 458, 470 (3d Cir.
2006). The legislative cousin of Section 2423(c), Section
2423(b), has thus been found constitutional because it requires
that a person travel abroad with an intent to engage in illicit
sexual conduct. See Bredimus, 352 F.3d at 207.
36
Despite such arguments as to why SORNA is constitutionally
suspect, we agree with the government that this Circuit’s clear
precedent could provide a solid basis for upholding Section
2423(c) on the ground that it regulates the channels and
instrumentalities of foreign commerce. Yet we need not adopt
such an expansive holding when a second, more limited, ground
exists upon which we now find that Section 2423(c) regulates
commerce with foreign nations.
b.
As previously discussed, Congress may also regulate an
activity when it is rational to conclude that the activity has a
demonstrable effect on foreign commerce. It is eminently
rational to believe that prohibiting the non-commercial sexual
abuse of children by Americans abroad has a demonstrable effect
on sex tourism and the commercial sex industry. Looking first
to the legislative history of the Sex Tourism Prohibition
Improvement Act of 2002 – the bill that first proposed the
language of Section 2423(c) – the House Report remarked in its
“Background and Need for the Legislation” section:
Many developing countries have fallen prey to the
serious problem of international sex tourism. . . .
Because poor countries are often under economic
pressure to develop tourism, those governments often
turn a blind eye toward this devastating problem
because of the income it produces. Children around
the world have become trapped and exploited by the sex
tourism industry. . . . This legislation will close
significant loopholes in the law that persons who
37
travel to foreign countries seeking sex with children
are currently using to their advantage in order to
avoid prosecution.
H.R. Rep. 107–525, 2002 WL 1376220 at *2–3. As a tool to close
statutory “loopholes” that affected commercial sex tourism,
Section 2423(c) removed Section 2423(b)’s condition that an
individual could only be prosecuted if he/she traveled in
foreign commerce “for the purpose of engaging in any illicit
sexual conduct.” 18 U.S.C. § 2423(b) (emphasis added). By
eliminating the intent requirement, Congress believed that it
could more effectively curtail the stream of Americans traveling
in foreign commerce to abuse children in other countries. See
Pendleton, 658 F.3d at 311 (citing to legislative history and
noting that members of Congress were concerned that Section
2423(b) “would not adequately deter child-sex tourists because
prosecutors were having an extremely difficult time proving
intent in such cases” (internal quotation marks omitted)).
More generally, the international community has suggested
the need for a “holistic approach” to combat forms of commercial
sexual exploitation like child prostitution and child
pornography – a holistic approach that includes non-commercial
regulations. As noted in the preamble to the aforementioned
Optional Protocol, to which the United States is a signatory:
[T]he elimination of the sale of children, child
prostitution and child pornography will be facilitated
by adopting a holistic approach, addressing the
38
contributing factors, including underdevelopment,
poverty, economic disparities, inequitable socio-
economic structure, dysfunctioning families, lack of
education, urban-rural migration, gender
discrimination, irresponsible adult sexual behavior,
harmful traditional practices, armed conflicts and
trafficking of children.
T.I.A.S. 13,095, 2171 U.N.T.S. 227. In Article 3, meanwhile,
the Protocol requires governments to criminalize a number of
commercial “acts and activities.” Id. art. 3. The treaty
provides, however, that such measures are only “a minimum”
requirement. Id. In that light, it is reasonable for
governments to determine that the non-commercial abuse of
children is a factor that contributes to commercial sexual
exploitation, and to regulate non-commercial conduct
accordingly.
Other courts have likewise concluded that Section 2423(c)
is part of a larger regulatory scheme designed to close
loopholes that facilitated the abuse of children abroad by sex
tourists. In Pendleton, for instance, the Third Circuit
credited the congressional finding that preexisting law failed
to deter commercial sex tourists, necessitating Section 2423(c).
Pendleton, 658 F.3d at 310 (“Specifically, Congress found that
American citizens were using the channels of foreign commerce to
travel to countries where ‘dire poverty and . . . lax
enforcement’ would allow them to ‘escape prosecution’ for their
crimes of child sexual abuse.” (alteration in original)
39
(quoting 148 CONG. REC. 3884 (2002))). Similarly, the Western
District of Texas has aptly and succinctly remarked:
[T]he language of the PROTECT Act, the Optional
Protocol that § 2423(c) was designed to implement, and
the language accompanying § 2423(c)’s legislative
forerunner all demonstrate that § 2423(c) is primarily
designed to combat the human suffering and economic
evils of worldwide sex tourism and child prostitution.
Similar to Raich, there is a rational basis for
concluding that leaving non-commercial sex with minors
outside of federal control could affect the price for
child prostitution services and other market
conditions in the child prostitution industry. See
Raich, 545 U.S. at 19. Therefore, the Court has no
difficulty concluding that Congress had a rational
basis for believing that failure to regulate the non-
commercial sexual abuse of minors “would leave a
gaping hole” in the PROTECT Act and its ability to
regulate the commercial industry of child
prostitution.
United States v. Martinez, 599 F. Supp. 2d 784, 807-08 (W.D.
Tex. 2009); see also Bianchi, 386 F. App’x at 162 (upholding
Section 2423(c)’s non-commercial prong in an unpublished opinion
after invoking Martinez and remarking that the appellant had not
“even attempted to persuade us that Congress did not have a
rational basis for believing” that regulating the non-commercial
sexual abuse of minors would strengthen the regulation of
commercial sexual abuse) (internal quotation marks omitted)).
Finally, it is worthwhile to briefly consider the
consequence of a contrary holding that Section 2423(c) is
unconstitutional. In that case, a citizen could effectively
avoid all police power by leaving U.S. soil and traveling to a
40
nation with weak or non-existent sexual abuse laws. The citizen
would be free to act with impunity – a reality that could
undoubtedly have broad ramifications on our standing in the
world, potentially disrupting diplomatic and even commercial
relationships. Of course, the Tenth Amendment reserves
unenumerated powers to the states and the people. But the
Constitution does not envision or condone a vacuum of all police
power, state and federal, within which citizens may commit acts
abroad that would clearly be crimes if committed at home.
B.
Bollinger also contests the prison sentence imposed by the
district court. We review the sentence for reasonableness.
United States v. Booker, 543 U.S. 220, 261-62 (2005); see also
United States v. McManus, 734 F.3d 315, 317 (4th Cir. 2013) (“We
review criminal sentences for reasonableness using an abuse of
discretion standard.”). In making that determination, “[w]e
review the district court’s factual findings for clear error and
its legal conclusions de novo.” McManus, 734 F.3d at 317.
Bollinger argues that the district court committed both
procedural and substantive error. Procedurally, Bollinger
contends that the district court erred by (1) not adequately
considering his arguments for a more substantial downward
variance “based on the need for the sentence to encourage others
to voluntary disclose” their criminal acts, and (2) relying on a
41
factor (the age of the victims) which was already included in
the guideline calculation as an enhancement, “without explaining
why that factor existed to a degree that additional weight
needed to be given under Section 3553(a).” Br. of Appellant 48-
49. Substantively, Bollinger urges that the sentence should be
reversed because the “totality of the facts make it clear that
[the sentence of 25 years] was greater than necessary to
accomplish the purposes of criminal sentencing.” Id. at 49. We
consider each argument in turn.
1.
Regarding the first asserted procedural error, Bollinger is
correct that a sentencing court “must demonstrate that it
‘considered the parties’ arguments and ha[d] a reasoned basis
for exercising [its] own legal decisionmaking authority.’”
United States v. Lynn, 592 F.3d 572, 576 (4th Cir. 2010)
(alterations in original) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)). To that end, we have held that a court
must “place on the record an ‘individualized assessment’ based
on the particular facts of the case before it.” United States
v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). “‘Where the
defendant or prosecutor presents nonfrivolous reasons for
imposing a different sentence’ than that set forth in the
advisory Guidelines, a district judge should address the party’s
42
arguments and ‘explain why he has rejected those arguments.’”
Id. at 328 (quoting Rita, 551 U.S. at 357).
Here, the district court expressly recognized that
Bollinger had self-reported, and the court included that fact in
its Statement of Reasons for the sentence imposed. During the
sentencing hearing, the court additionally noted that a factor
favoring a downward variance was the “out-of-the-shadows self-
reporting aspect of the case.” J.A. 263. Although the court
did not explicitly address the argument that a larger downward
variance would encourage other perpetrators of sexual abuse to
voluntarily report their offenses, the court observed that
Bollinger probably would never been prosecuted without his self-
reporting. The court further stated that it had considered all
of the arguments raised by Bollinger in favor of mitigation,
including the need for leniency based on self-reporting, and it
imposed a sentence that took those factors into account. Thus,
the record demonstrates that the court adequately considered
Bollinger’s arguments and “ha[d] a reasoned basis” for the
sentence imposed. Lynn, 592 F.3d at 576.
2.
Bollinger’s arguments regarding the second alleged
procedural error fare no better. He maintains that because the
aggravated nature of the victims’ ages was already factored into
43
the guideline range, 8 the court inappropriately considered the
ages again during its later consideration of the Section 3553(a)
sentencing factors. See J.A. 687, 265. 9
As we have established, “a fact that is taken into account
in computing a Guidelines range is not excluded from
consideration when determining whether the Guideline sentence
adequately serves the four purposes of § 3553(a)(2).” United
States v. Shortt, 485 F.3d 243, 252 (4th Cir. 2007). Here, the
district court mentioned the young age of the victims in its
Statement of Reasons, but a fair reading of the sentencing
transcript in combination with the Statement, shows that the
court relied on non-age-related factors in deciding the term of
imprisonment – such as the “abuse of trust” involved and the
fact that the girls were “some of the most vulnerable, most
poor, most needy, most in need of protection from those in
authority.” J.A. 265. The sentence was thus not procedurally
unreasonable. And if there were any doubt, “procedural errors
8 The victims’ ages triggered an 8-point enhancement under
U.S.S.G. § 2G1.3(b)(5).
9 The enhancement applied because the victims were under 12-
years-old. If they had been older than 12, Bollinger observes
that the guideline sentence would have been less than 20 years,
instead of 60 years. This fact, he argues, provides further
evidence that that the court should not have “double-counted”
the ages of the victims as a factor to be considered under
Section 3553(a). Br. of Appellant 53.
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at sentencing . . . are routinely subject to harmlessness
review.” Puckett v. United States, 556 U.S. 129, 141 (2009);
see also Lynn, 592 F.3d at 576. Even if it was procedural error
for the court to mention the age of the victims during its
Section 3553(a) analysis, the record reveals that the error did
not affect the total sentence imposed.
3.
Substantively, Bollinger argues that the 25-year sentence
he received effectively amounts to “life in prison without
parole” given his age. Such a fate, he urges, is not consistent
with the statutorily-defined purposes of punishment, such as
deterrence, incapacitation, and rehabilitation. See
§ 3553(a)(2). Bollinger maintains that he has a low risk of
reoffending, has already shown a capacity for rehabilitation
outside of prison, and should not be subjected to a life
sentence merely for punishment. Further, he argues that
deterrence is not served by a long sentence, because a short
sentence will encourage others to self-report their crimes.
In evaluating substantive reasonableness, we look to the
totality of the circumstances to determine whether the district
court abused its discretion in applying the standards set out in
Section 3553(a)(2). McManus, 734 F.3d at 317-18 (internal
citations omitted). “A sentence that does not serve the
announced purposes of § 3553(a)(2) is unreasonable. Likewise, a
45
sentence that is greater than necessary to serve those purposes
is unreasonable.” Shortt, 485 F.3d at 248.
Here, the sentence imposed by the district court –
representing a 60% downward variance – was not unreasonable when
considered in light of our deferential standard of review, the
heartrending victim-impact statements in the record, the
powerlessness of the victims, and the minister’s heinous abuse
of authority. Notably, Bollinger cites no authority for the
proposition that a defendant’s advanced age renders unreasonable
a sentence that would otherwise be reasonable. Nonetheless, the
district court expressly considered Bollinger’s age in imposing
a sentence well below the 60-year Guideline term. That sentence
should stand.
III.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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