                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-5-2006

USA v. MacEwan
Precedential or Non-Precedential: Precedential

Docket No. 05-1421




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                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                       No. 05-1421


             UNITED STATES OF AMERICA

                             v.

                 JAMES E. MACEWAN,
                                Appellant



      On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                   (D.C. No. 04-cr-00262)
       District Judge: Honorable Michael M. Baylson


                   Argued March 9, 2006

    Before: ROTH and ALDISERT, Circuit Judges, and
             RODRIGUEZ,* District Judge


*
  The Honorable Joseph H. Rodriguez, Senior District Judge,
United States District Court for the District of New Jersey,
sitting by designation.
                    (Filed: April 5, 2006)

Ellen C. Brotman, Esq. (Argued)
John Rogers Carroll, Esq.
Carroll & Brotman
601 Walnut Street
Suite 1150 West
Philadelphia, PA 19106

       Counsel for Appellant

Patrick L. Meehan, Esq.
Robert A. Zaumer, Esq.
Wendy A. Kelly, Esq.
Peter D. Hardy, Esq. (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee


                          OPINION


ALDISERT, Circuit Judge.

       This appeal primarily requires us to decide if the use of
the Internet satisfies the interstate commerce element of the

                               2
federal law prohibiting the receipt of child pornography, 18
U.S.C. § 2252A(a)(2)(B).1 We hold that it does. The question
is presented before this Court on defendant James E.
MacEwan’s appeal from a judgment of conviction and sentence
entered on January 31, 2005, in the United States District Court
for the Eastern District of Pennsylvania. MacEwan was
convicted on two counts of violating § 2252A(a)(2)(B)2 and, as


1
  The act punishes “Any person who . . . knowingly receives or
distributes . . . any material that contains child pornography that
has been mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer . . ..”
18 U.S.C. § 2252A(a)(2)(B).
2
   We note initially that there appears to be a discrepancy
between the crime charged in the indictment, the crime of
conviction in the District Court’s December 29, 2004
Memorandum Opinion and the crime of conviction listed in the
Judgment. Count Two of the indictment, which is the focus of
the present appeal, charges a violation of 18 U.S.C. §
2252A(a)(2)(B). The Judgment states that MacEwan was found
guilty of violating 18 U.S.C. § 2252(A)(4)(B), which is not an
actual offense. The Court’s Memorandum Opinion states that
MacEwan was charged with and is guilty of violating 18 U.S.C.
§ 2252A(a)(4)(B). We believe these discrepancies to be mere
clerical errors that may be corrected by the District Court at any
time pursuant to Rule 36 of the Federal Rules of Criminal
Procedure. In any event, in their briefs, both parties correctly
argued the merits of MacEwan’s conviction under 18 U.S.C. §
2252A(a)(2)(B). The District Court should correct the judgment
to state that MacEwan was convicted of violating 18 U.S.C. §

                                3
a repeat offender of the federal anti-child pornography laws,
received a 15-year sentence pursuant to the mandatory minimum
sentencing provision of 18 U.S.C. § 2252A(b)(1). In addition to
determining whether the jurisdictional nexus of §
2252A(a)(2)(B) comports with the Constitution and was
satisfied in this case, we must also decide whether the 15-year
sentence imposed by the District Court pursuant to the
mandatory minimum sentence requirements of 18 U.S.C. §
2252A(b)(1) constitutes: (1) a violation of the Eighth
Amendment prohibition on cruel and unusual punishment, (2) a
violation of the separation of powers doctrine, or (3) a
deprivation of due process under the Fifth Amendment.
Jurisdiction was proper in the District Court pursuant to 18
U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. §
1291 and 18 U.S.C. § 3742(a)(1). For the following reasons, we
will affirm the judgment and sentence in all respects.


                              I.

        James MacEwan is a 71-year-old repeat offender of the
federal laws prohibiting the distribution and receipt of child
pornography. In 2001, prior to the present conviction for two
counts of receiving child pornography in violation of §
2252A(a)(2)(B), MacEwan had been arrested for and later pled
guilty to possessing child pornography in violation of §
2252(a)(1)(B). On January 30, 2003, he was sentenced to five
years probation. Under the terms of his probation, MacEwan


2252A(a)(2)(B), as that was the offense charged and that was
the crime upon which evidence was admitted and considered.

                              4
was prohibited from possessing child pornography, and his
probation officer was permitted to make random inspections of
his computer.

                              A.

       Within little more than a year, MacEwan was found to
have violated the terms of his probation three times, for which
an indictment was returned on May 6, 2004. The indictment
charged him with three counts of receiving materials containing
child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B).

        MacEwan was first discovered to have violated the
conditions of his probation on July 16, 2003, when his probation
officer made an unannounced visit to his home to verify his
compliance with the terms of his probation. After inspecting
MacEwan’s computer, the officer found that MacEwan had been
visiting child pornography websites. The officer then had the
computer seized. Following further inspection, it was found to
contain approximately 1,068 graphic image files of child
pornography. This incident formed the basis of Count One of
the 2004 indictment.

       The second violation was discovered on October 9, 2003,
when the probation officer made another unannounced visit to
MacEwan’s home. After inspecting two other computers, the
probation officer found links to child pornography websites.
The two computers were then seized and later found to contain
approximately 256 graphic image files of child pornography.
This incident forms the basis for Count Two.



                               5
        The third violation occurred on March 10, 2004, when an
undercover United States Postal Inspector, posing as a letter
carrier, delivered five videotapes containing child pornography
to MacEwan’s home. MacEwan had previously ordered these
tapes from a catalogue sent by the government as part of an
investigation into a global child pornography enterprise.
MacEwan was selected to receive the catalogue solicitation
because, during the course of the investigation, his name had
previously been identified on a customer list for a child
pornography website. After the videotapes were delivered and
in MacEwan’s possession, the Postal Inspectors then retrieved
the videotapes pursuant to an anticipatory search warrant. This
incident forms the basis for Count Three.

                               B.

       On October 28, 2004, MacEwan entered a guilty plea to
Count Three, but proceeded to trial on Counts One and Two.
Following a bench trial held that same day, he was acquitted of
Count One because the government failed to prove that he had
received the image files that were the subject of that count
within the applicable statute of limitations period. MacEwan
was, however, found guilty of Count Two.

       At trial, MacEwan had stipulated to the number of
images charged in Counts One and Two, that they met the
statutory definition of child pornography, and that the files had
been knowingly downloaded from the Internet. He argued,
however, that the government could not establish that, in
compliance with the interstate commerce jurisdictional element
of § 2252A(a)(2)(B), there was an interstate transmission of the

                               6
pornographic images. He contended that, absent proof to the
contrary, the images could just as easily have traveled intrastate
and that such an activity was beyond the reach of Congress
under the Commerce Clause.

        To support its argument that the images had traveled in
interstate commerce, the government had James Janco, the
manager of Comcast’s Network Abuse Department, testify.
Comcast was MacEwan’s Internet service provider from
December 2002 to October 14, 2003. Janco chiefly summarized
the flow of data over the Internet and the routing of subscribers’
website connection requests.

       He stated that when a Comcast subscriber accesses the
Internet from his home computer and requests a connection with
a website, the connection would first originate from the
subscriber’s computer, pass through the cable modem – both of
which are located in the subscriber’s house – and then be sent to
a regional data center. For West Chester, Pennsylvania, where
MacEwan resided, Comcast’s regional data center was located
within Pennsylvania. The regional data center takes the
subscriber’s request, transfers it through various routers within
the regional data center, then sends the request to the Internet
backbone, which is a series of leased, commercial and private
lines. Janco then stated that those lines take the subscriber’s
specific request and connect it to the server containing the
desired website.

       Comcast calls this process of accessing a website
“Shortest Path First” (“SPF”). Under SPF, when the signal
travels from the regional data center it will be dynamically

                                7
routed along the lines with the least volume of Internet traffic,
rather than those covering the shortest geographical distance. In
Janco’s words: “[I]f the lines that [the request] would normally
go within Pennsylvania are clogged or have a high amount of
traffic on it, [the Internet backbone] would dynamically assign
[the request] to another line connection and send it out of the
shortest path first, what typically would be in the State of
Pennsylvania in this case.” (Trial Transcript, app. at 50-51.)
Janco acknowledged, however, that if the Pennsylvania lines are
full or too busy, the connection request could instead be routed
through lines outside of Pennsylvania, even if the requested
website were located on a server located within Pennsylvania.
He stated that it was impossible to scientifically ascertain the
exact path “any specific request, at a point in time would have
done.”3 (Id. at 54.) Ultimately, however, the connection request
would end up “wherever the server is physically located where
[the subscriber] is trying to go.” (Id. at 50-51.) This server
could be located in Pennsylvania or anywhere else within the
United States.

       Before the close of trial, MacEwan made a motion for
acquittal pursuant to Rule 29(a) of the Federal Rules of Criminal
Procedure. His motion contended that the government failed to
prove the interstate commerce jurisdictional element of §
2252A(a)(2)(B) because there was no evidence presented at trial

3
   Janco also stated that Comcast does not monitor data-routing
traffic and thus does not possess any records that would indicate
the specific route MacEwan’s requests would have taken in
accessing the child pornography websites. (Trial Transcript,
app. at 66-67.)

                               8
showing that the downloaded image files ever traveled outside
of the state of Pennsylvania. He also contended that, as for
Count One, the government failed to prove beyond a reasonable
doubt that the image files were received within the statute of
limitations period for § 2252A(a)(2)(B).

        In its Memorandum Opinion dated December 29, 2004,
the trial court rejected MacEwan’s Rule 29(a) motion on Count
Two4 and held that “the evidence which the government
presented, that the images on the Defendant’s computers were
received through the internet, is sufficient to carry its burden of
proof as to interstate commerce, and that it is not necessary to
prove that the specific images were received from a source
outside of Pennsylvania.” (Opinion of the District Court, at 6.)
It also rejected MacEwan’s challenge that the jurisdictional
prong of § 2252A(a)(2)(B) is beyond Congress’ power in light
of United States v. Lopez, 514 U.S. 549 (1995), United States v.
Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529
U.S. 848 (2000). In so ruling, the District Court relied heavily
on this Court’s holding in United States v. Rodia, 194 F.3d 465
(3d Cir. 1999),5 which was decided after Lopez, but before


4
   The Court granted his Rule 29(a) motion on Count One,
holding that the government failed to prove beyond a reasonable
doubt that MacEwan received the images that were the subject
of that charge within the applicable statute of limitations period.
5
   In Rodia, this Court held that Congress had the power to
regulate the intrastate possession of child pornography under its
Commerce Clause powers because such possession has a
“substantial effect on interstate commerce.” Rodia, 194 F.3d at

                                9
Morrison and Jones.

                              C.

       MacEwan’s sentencing hearing was held on January 31,
2005, where the District Court determined that the enhanced
sentencing provisions of the Prosecutorial Remedies and Other
Tools to End the Exploitation of Children Today Act
(PROTECT Act), Pub. L. No. 108-21, 117 Stat. 650 (2003),
effective as of April 30, 2003, applied to MacEwan because of
his 2003 conviction for violating 18 U.S.C. § 2252(a)(1)(B).
Pursuant to those enhancement provisions, MacEwan, as a
repeat offender of Chapter 110 of Section 18 of the U.S. Code,
was required to receive a minimum sentence of 15 years in
prison. See 18 U.S.C. § 2252A(b)(1). MacEwan objected to the
application of this mandatory minimum, arguing that it violates
the Eighth Amendment prohibition on cruel and unusual
punishment, the Fifth Amendment Due Process Clause right to
an individualized sentence, and the separation of powers
doctrine. The Court rejected these arguments and accordingly
sentenced MacEwan to 15 years in prison with five years of
supervised release. This appeal of both his conviction and
sentence followed.

                              II.


478-479.       There, however, we were interpreting the
jurisdictional element of § 2252(a)(4)(B), not § 2252A(a)(2)(B).
Accordingly, although the reasoning in Rodia may be persuasive
in guiding our analysis of Congress’ Commerce Clause powers,
it is not controlling.

                              10
       MacEwan presents a twofold challenge to the
jurisdictional element of 18 U.S.C. § 2252A(a)(2)(B). He first
contends that it must be strictly interpreted to require the
government to prove that the child pornography images were
transmitted interstate; otherwise, he contends, the jurisdictional
element unconstitutionally expands Congress’ power under the
Commerce Clause to punish purely intrastate acts. Second, in
what is essentially a sufficiency of the evidence challenge,
MacEwan contends that the government failed to prove beyond
a reasonable doubt that he met the jurisdictional element of §
2252A(a)(2)(B).

                                A.

       We exercise plenary review over MacEwan’s challenges
to the interpretation and constitutionality of the interstate
commerce jurisdictional element of 18 U.S.C. § 2252A(a)(2)(B).
See Rodia, 194 F.3d at 469. Section 2252A(a)(2)(B) punishes
“[a]ny person who . . . knowingly receives or distributes . . . any
material that contains child pornography that has been mailed,
or shipped or transported in interstate or foreign commerce by
any means, including by computer.”

        MacEwan faults the District Court for its broad holding
that regardless of whether the images originated in Pennsylvania
or out-of-state, the government showed that the images were
downloaded from the Internet, which was “sufficient to carry its
burden of proof as to interstate commerce.” (Opinion of the
District Court, at 6.) He contends that because the government
could not conclusively prove that the child pornography images
crossed state lines in their Internet transmission, he is therefore

                                11
being punished essentially for his mere intrastate possession of
child pornography. He then argues that § 2252A does not reach
this activity, or, in the alternative, that if it did, Congress does
not have the power under the Commerce Clause to punish those
who possess child pornography that has not been transmitted
interstate.

       MacEwan is conflating “interstate commerce” with
“interstate transmission” and confusing the nature of the
jurisdictional basis for his charged offense.6 Nowhere in the

6
  MacEwan argues that “Congress’ inclusion of ‘computer’ in
[the § 2252A(a)(2)(B) jurisdictional provision] demonstrates
that the internet was considered to be a possible method of
interstate transport, but did not by itself constitute interstate
transport.” (MacEwan Br. at 17.) He then argues that
“Congress[’] intention to criminalize the use of a computer to
transport prohibited images in interstate commerce prohibits a
finding that the statute also criminalized the use of a computer
to send images intrastate.” (Id. at 17-18.) Had Congress
intended for the meaning of the term “interstate commerce” to
equate to the transmission of image files over the Internet, he
argues that it would have so indicated. We disagree. When
interpreting a statute, we are to endeavor to give the terms of the
statute their ordinary meaning whenever possible. Okeke v.
Gonzales, 407 F.3d 585, 593 (3d Cir. 2005). Moreover, “[i]n
construing statutes, ‘we must, of course, start with the
assumption that the legislative purpose is expressed by the
ordinary meaning of the words used.’” I.N.S. v. Elias-Zacarias,
502 U.S. 478, 482 (1992) (citation omitted). Congress’ specific
inclusion of the term “including by computer” denotes its

                                12
statute does it state that the child pornography images must have
crossed state lines; rather, it states solely that they must have
been “transported in interstate . . . commerce by any means,
including by computer.” See Okeke v. Gonzales, 407 F.3d 585,
593 (3d Cir. 2005) (stating that we will give terms of statutes
their plain and ordinary meaning). With this distinction in mind,
we must therefore analyze whether downloading an image of
child pornography from the Internet (1) involves the receipt of
something transported in interstate commerce, and (2) whether
it is a constitutional exercise of Congress’ power under the
Commerce Clause to punish those who use the Internet to
download such images.

                               1.

       “The Internet is an international network of
interconnected computers . . . [and is comparable] to both a vast


special concern for the transmission of child pornography by
electronic means. It defies sound reason to read this provision
to exclude transmissions of child pornography over the Internet.
The downloading of images from the Internet is synonymous
with the transmission of images in interstate commerce by
computer. See infra. To not so read the statute would render the
term “including by computer” effectively meaningless. See
TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citations and
quotations omitted) (“It is a cardinal principle of statutory
construction that a statute ought, upon the whole, to be so
construed that, if it can be prevented, no clause, sentence, or
word shall be superfluous, void, or insignificant.”).
Accordingly, we reject MacEwan’s reading of the statute.

                               13
library including millions of readily available and indexed
publications and a sprawling mall offering goods and services.”
Reno v. ACLU, 521 U.S. 844, 850-853 (1997). Moreover, as is
evident from the trial testimony of the government’s expert,
unless monitored by specific equipment, it is almost impossible
to know the exact route taken by an Internet user’s website
connection request, such as MacEwan’s requests to connect with
various child pornography websites. Because of fluctuations in
the volume of Internet traffic and determinations by the systems
as to what line constitutes the “Shortest Path First,” a website
connection request can travel entirely intrastate or partially
interstate.

       Regardless of the route taken, however, we conclude that
because of the very interstate nature of the Internet, once a user
submits a connection request to a website server or an image is
transmitted from the website server back to user, the data has
traveled in interstate commerce. Here, once the images of child
pornography left the website server and entered the complex
global data transmission system that is the Internet, the images
were being transmitted in interstate commerce. To quote the
Court of Appeals for the First Circuit in United State v. Carroll,
the “transmission of photographs by means of the Internet is
tantamount to moving photographs across state lines and thus
constitutes transportation in interstate commerce.” 105 F.3d
740, 742; see United States v. Runyan, 290 F.3d 223, 239 (5th
Cir. 2002) (same).

                               2.

       That said, it is clear that Congress has the power to

                               14
regulate the downloading of child pornography from the
Internet. The Commerce Clause gives Congress power to
regulate three types of activity: (1) “the use of channels of
interstate commerce”; (2) “the instrumentalities of interstate
commerce, or persons or things in interstate commerce, even
though the threat may come only from intrastate activities”; and
(3) “those activities having a substantial relation to interstate
commerce, . . . i.e., those activities that substantially affect
interstate commerce.” See Lopez, 514 U.S. at 558-559.
Ignoring the first and second categories cited by Lopez,
MacEwan proceeds to the third, and argues that because the
government could not prove that the child pornography images
traveled across state lines, the jurisdiction over his activity was
only then created by his mere possession of child pornography.
He then contends that, pursuant to Lopez and Morrison,
Congress lacks the authority to regulate this activity because the
mere intrastate possession of child pornography does not have
a substantial impact on interstate commerce.

       We disagree with this approach. In addressing the
transmission of child pornography images over the Internet, we
need not proceed to an analysis of Lopez’s third category when
Congress clearly has the power to regulate such an activity
under the first two. See United States v. Bishop, 66 F.3d 569,
588 n.29 (3d Cir. 1995) (“Lopez involved only a regulation that
was justified, if at all, under Category Three [(the substantial
effects test)] . . . [a]s such, Lopez does not affect our analysis
here [of Category Two].”); compare with Lopez, 514 U.S. at
559 (proceeding to an analysis of congressional power under
Category Three, where it was not argued that the first two
categories applied); Morrison, 529 U.S. at 609 (same). Indeed,

                                15
it is difficult to find an act more intertwined with the use of the
channels and instrumentalities of interstate commerce than that
of downloading an image from the Internet. See United States
v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004) (“Congress
clearly has the power to regulate the internet, as it does other
instrumentalities and channels of interstate commerce, and to
prohibit its use for harmful or immoral purposes regardless of
whether those purposes would have a primarily intrastate
impact.”). Accordingly, we are able to state conclusively that
Congress’ power under § 2252A(a)(2)(B) lies in its ability to
regulate the channels and instrumentalities of interstate
commerce.7

                                3.

7
   By basing Congress’ power to regulate the transmission of
child pornography via the Internet under § 2252A(a)(2)(B) upon
its power to regulate the channels and instrumentalities of
interstate commerce, we avoid the necessity of revisiting our
holding in Rodia by analyzing whether MacEwan’s mere
possession of child pornography that may have traveled wholly
intrastate had a substantial impact upon interstate commerce as
required by Lopez’s Category Three. See Rodia, 194 F.3d at
473 (conducting such an analysis, as required by Lopez, as to
whether the mere intrastate possession of such materials was
something Congress could prohibit). Accordingly, insofar as the
District Court premised its conclusions upon Rodia, we affirm
on other grounds. Guthrie v. Lady Jane Collieries, Inc., 722
F.2d 1141, 1145 n.1 (3d Cir. 1983) (“An appellate court may
affirm a result reached by the district court on different reasons,
as long as the record supports the judgment.”).

                                16
       Having concluded that the Internet is an instrumentality
and channel of interstate commerce,8 it therefore does not matter
whether MacEwan downloaded the images from a server located
within Pennsylvania or whether those images were transmitted
across state lines. It is sufficient that MacEwan downloaded
those images from the Internet, a system that is inexorably
intertwined with interstate commerce. See Lopez, 514 U.S. at
558 (stating that Congress has the power to regulate an
instrumentality of interstate commerce even though the “threat
may come only from intrastate activities”); Bishop, 66 F.3d at
588 (holding that Congress has the power to regulate the
instrumentalities of interstate commerce even though the
wrongful conduct may occur wholly intrastate).

                                B.


8
   Because the Internet is a worldwide communications system
composed of an interconnected network of computers, data
lines, routers, servers, and electronic signals, it is difficult to
discern when the instrumentality component of Lopez’s
Category Two ends and the channel component of Lopez’s
Category One begins. We find no need to make a distinction
between the two categories, however, because the Internet is
both a channel of interstate commerce, see Extreme Associates,
431 F.3d 150, 161 (3d Cir. 2005) (“The Internet is a channel of
commerce covered by the federal statutes regulating the
distribution of obscenity.”), and, much like a bridge, railroad,
highway, or airplane, it constitutes an instrumentality of
interstate commerce, see Bishop, 66 F.3d at 588 (listing types of
interstate instrumentalities).

                                17
        At trial, MacEwan stipulated that he downloaded from
the Internet the child pornography images that were the subject
of his conviction for Count Two of the indictment.
Accordingly, in light of our conclusion that the government is
not required to prove that the child pornography images crossed
state lines before being downloaded and received by the
defendant, but rather only must prove that the images were
downloaded from the Internet, which is properly regulated by
Congress as a channel and instrumentality of interstate
commerce, it is beyond doubt that the government proved that
MacEwan satisfied the jurisdictional element of §
2252A(a)(2)(B). Cf. United States v. Kimler, 335 F.3d 1132,
1138 n.7 (10th Cir. 2003) (stating that even if the ultimate
source of the child pornography images was an intrastate
distributor, the defendant’s activity “would still be interstate if,
as the evidence at trial established, he sent and received the
images in interstate commerce over the internet”); United States
v. Hilton, 257 F.3d 50, 54 (1st Cir. 2001) (“[P]roof of
transmission of pornography over the Internet or over telephone
lines satisfies the interstate commerce element of the offense.”).

                                III.

       We next turn to MacEwan’s challenges to his 15-year
sentence. As part of an effort by Congress “to restore the
government’s ability to prosecute child pornography offenses
successfully,” the PROTECT Act amended § 2252A to provide
increased punishment for repeat child pornography offenders.
S. Rep. No. 108-2, at 1 (2003). The Act increased the
mandatory minimum sentences for repeat offenders from five to
15 years.       PROTECT Act, Pub.L. No. 108-12, §

                                18
103(b)(1)(E)(ii),117 Stat. 650, 653 (2003) (codified as amended
at 18 U.S.C. § 2252A(b)(1)). Effective as of April 30, 2003, the
amended mandatory minimum sentencing provision now states
that:

       Whoever violates, or attempts or conspires to
       violate, paragraph (1), (2), (3), (4), or (6) of
       subsection (a) shall be fined under this title and
       imprisoned not less than 5 years and not more
       than 20 years, but, if such person has a prior
       conviction under this chapter, chapter 71, chapter
       109A, chapter 117, or under section 920 of title
       10 (article 120 of the Uniform Code of Military
       Justice), or under the laws of any State relating to
       aggravated sexual abuse, sexual abuse, or abusive
       sexual conduct involving a minor or ward, or the
       production, possession, receipt, mailing, sale,
       distribution, shipment, or transportation of child
       pornography, such person shall be fined under
       this title and imprisoned for not less than 15 years
       nor more than 40 years.

18 U.S.C. § 2252A(b)(1) (2004). Prior to the instant case,
MacEwan had entered a guilty plea and was sentenced to
probation for possessing child pornography in violation of 18
U.S.C. § 2252(a)(1)(B). His present conviction on two counts
of knowingly receiving child pornography images in violation
of 18 U.S.C. § 2252A(a)(2)(B) triggered the enhanced




                               19
sentencing measures of the PROTECT Act.9

       MacEwan contends that the 15-year mandatory minimum
sentence required by § 2252A(b)(1) is unconstitutional because
it violates the Eighth Amendment prohibition on cruel and
unusual punishment, the separation of powers doctrine and the
Fifth Amendment Due Process Clause right to an individualized
sentence. We exercise plenary review over these constitutional
challenges to the 15-year mandatory minimum sentence of §
2252A(b)(1). See Rodia, 194 F.3d at 469 (exercising plenary
review over constitutional questions). We will deal with each
contention in turn.

                              A.

        MacEwan argues that the 15-year mandatory minimum
sentence of § 2252A(b)(1) offends the Eighth Amendment as
“cruel and unusual punishment,” because it is grossly
disproportionate to the offenses that MacEwan committed and
is at odds with the “evolving standards of decency” that are a

9
  We also note that even if we had not determined that Congress
had the power under the Commerce Clause to regulate
MacEwan’s downloading of child pornography, he still pled
guilty to Count Three of the indictment which also charged a
violation of § 2252A(a)(2)(B) for his receipt, by mail, of five
videotapes containing child pornography.           Accordingly,
regardless of our treatment of his conviction for Count Two,
MacEwan would still be subject as a repeat offender to the
mandatory minimum 15-year sentencing requirement of §
2252A(b)(1).

                              20
part of American society. See Atkins v. Virginia, 536 U.S. 304,
311-312 (2002). In arguing that the mandatory minimum
provision of § 2252A(b)(1) offends the Eighth Amendment,
MacEwan cites no cases where any court has found that such a
mandatory minimum non-lifetime sentence offends the Eighth
Amendment. We will therefore begin our Eighth Amendment
proportionality analysis by examining the framework presented
by the Supreme Court in Ewing v. California, 538 U.S. 21
(2003), and Solem v. Helm, 463 U.S. 277 (1983), and our own
court in United States v. Rosenberg, 806 F.2d 1169 (3d Cir.
1986).

       In Ewing, the plurality opinion10 states that the “Eighth
Amendment, which forbids cruel and unusual punishments,
contains a ‘narrow proportionality principle’ that ‘applies to
noncapital sentences.’” 538 U.S. at 20 (quoting Harmelin v.
Michigan, 501 U.S. 957, 996-997 (1991) (Kennedy, J.,
concurring in part and concurring in judgment)). When
evaluating proportionality challenges to sentences under the
Eighth Amendment, courts must examine three factors: (1) “the
gravity of the offense and the harshness of the penalty”; (2) “the
sentences imposed on other criminals in the same jurisdiction”;
and (3) “the sentences imposed for commission of the same
crime in other jurisdictions.” Solem, 463 U.S. at 290-292.
When conducting this analysis, this Court has recognized that

10
   Justice O’Connor wrote the plurality opinion, which Chief
Justice Rehnquist and Justice Kennedy joined. Justices Scalia
and Thomas filed opinions concurring in the judgment, but
stating that the Eighth Amendment contains no proportionality
principle. See Ewing, 538 U.S. at 31-33.

                               21
we “‘should grant substantial deference to the broad authority
that legislatures necessarily possess in determining the types and
limits of punishments for crimes.’” Rosenberg, 806 F.2d at
1175 (quoting Solem, 463 U.S. at 290).

        This principle of substantial deference therefore
“restrains us from an extended analysis of proportionality save
in rare cases.” Id. (quoting Solem, 463 U.S. at 290 n.16).
Consequently, in assessing such a challenge, the first
proportionality factor acts as a gateway or threshold. If the
defendant fails to show a gross imbalance between the crime
and the sentence, our analysis is at an end. We, therefore, must
focus upon whether MacEwan’s is “the rare case in which a
threshold comparison of the crime committed and the sentence
imposed leads to an inference of gross disproportionality.”
Ewing, 538 U.S. at 30 (quoting Harmelin, 501 U.S. at 1005
(Kennedy, J.)). If no such inference of gross disproportionality
exists, then we are not bound to conduct any “comparative
analysis ‘within and between jurisdictions’” as required by
Solem’s second and third factors. Id. at 23 (quoting Harmelin,
501 U.S. at 1005 (Kennedy, J.)).

                                1.

        Turning to the first proportionality factor, we note that
the Eighth Amendment does not demand strict proportionality
between the crime and the sentence; rather, it forbids only those
sentences that are “grossly disproportionate” to the crime. Id. at
23. Indeed, “successful challenges to the proportionality of
particular sentences should be exceedingly rare.” Id. at 22
(quoting Hutto v. Davis, 454 U.S. 370, 374 (1982) (per

                               22
curiam)). Here, the harshness of the 15-year mandatory
minimum sentence is not premised purely upon the commission
of the crimes charged in the 2004 indictment, but also upon the
fact that MacEwan is a recidivist who has previously committed
the crime of receiving child pornography. Indeed, the
punishment of recidivism, as occurs in § 2252A(b)(1), “has long
been recognized as a legitimate basis for increased punishment.”
Id. at 25.

         An appellant confronts a very high bar when challenging
a sentence mandated by Congress as the minimum punishment
for a recidivist offender. In Ewing, the Supreme Court upheld
the California three-strikes law in the face of a challenge by a
defendant who had received a mandatory sentence of 25 years
to life for his conviction of felony grand theft of three golf clubs.
Id. at 28, 30-31. The defendant had previously been convicted
of four serious or violent felonies. Id. at 19. In Rummel v.
Estelle, the Court upheld a life sentence for a defendant who
was convicted under a three-strikes law where the triggering
offense was the obtaining of $120.75 by false pretenses and the
appellant had committed two previous fraud felonies where the
amount obtained was $80 and $28.36, respectively. 445 U.S.
263, 265-266 (1980). It was only in Solem that the Court ruled
that a life sentence punishment for a recidivist offender violated
the proportionality principles of the Eighth Amendment. 463
U.S. at 296-297. There, the defendant – who had been
convicted of uttering a “no account” check for $100, which is a
felony, and had six prior minor and nonviolent felonies on his
record – was appealing a life sentence without the possibility of
parole. Id. In distinguishing its differing treatments of the
defendants in Solem and Rummel, the Court noted that the

                                 23
defendant in Rummel faced the possibility of parole for his
sentence, whereas the defendant in Solem could only petition for
executive clemency, which is a vastly different and much more
unpredictable system. Id. at 300-301.

                                2.

        Here, MacEwan is facing a 15-year mandatory minimum
prison term that he received for violating federal anti-child
pornography laws not once, but twice. His crimes were at least
as serious as those committed by the appellants challenging their
life sentences in Rummel and Ewing, which the Supreme Court
upheld as constitutional. And, unlike the appellant in Solem,
MacEwan’s triggering crime is not “one of the most passive
felonies a person could commit,” such as the utterance of a “no
account” check for $100. See Solem, 463 U.S. at 296.
Moreover, the sentence received by MacEwan, unlike those
received by the defendants in Rummel and Solem, is not a life
sentence, but 15 years.11 Indeed, in United States v. Gross, the

11
   MacEwan attempts to inflate the magnitude and nature of his
sentence, and cast it as a life term, by arguing that he is 70 years
old and in bad health, and therefore cannot possibly hope to
survive the 15-year term. (See MacEwan Br. at 34, 40.) In
support of this argument he cites to United States v. Martin,
wherein the Seventh Circuit ruled that it was an abuse of
discretion for a district court to sentence a 45-year-old convicted
of arson to 50 years in prison, which it found to be a de facto life
sentence, where the statute did not authorize a life sentence as
a penalty. 63 F.3d 1422, 1433-1434 (7th Cir. 1995). Unlike the
Seventh Circuit in Martin, however, we are dealing with a 15-

                                24
Court of Appeals for the Seventh Circuit ruled that the 15-year
mandatory minimum sentence provision of § 2252A(b)(1) does
not violate the proportionality principles of the Eighth
Amendment where the defendant had been convicted of
distributing child pornography in violation of 18 U.S.C. §
2252A(a)(2)(B) and he had been convicted previously of sexual
assault of a minor and lewdness with a minor. 437 F.3d 691
(7th Cir. 2006).

      MacEwan has repeatedly violated the federal anti-child
pornography laws, and attempts to downplay the nature of those


year mandatory minimum sentence imposed by statute, not a
statute allowing the imposition of any term of years except a
lifetime sentence. MacEwan cites no cases indicating that a de
facto life sentence created by a statutory mandatory minimum
term of years is a violation of the Eighth Amendment.
        We also cannot agree with MacEwan’s attempts to cast
his sentence as a punishment for an addiction in violation of
Robinson v. California, 370 U.S. 660, 666-667 (1962) (finding
unconstitutional a 90-day sentence imposed for being addicted
to narcotics). (See MacEwan Br. at 30-32, 40.) MacEwan might
have a problem controlling his urges to view child pornography,
but that is not what the statute is punishing. Unlike in Robinson,
where the statute punished the status of being an addict, the
statute here punishes one for repeatedly violating the federal
laws prohibiting the receipt of child pornography. Cf. United
States v. Pena, 125 F.3d 285, 287-288 (5th Cir. 1997)
(concluding that the statute at issue is not unreasonable where it
punishes the violation of probation for using narcotics, not the
defendant’s addiction to narcotics).

                               25
offenses by claiming that he is not a violent offender, or a
trafficker in drugs or guns. We do not agree with this use of
relativistic arguments to diminish the seriousness of his
offenses. In evaluating the magnitude of the harm caused by
child pornography, we defer to the findings made by Congress.
The congressional findings underlying § 2251 repeatedly stress
that child pornography “is a form of sexual abuse which can
result in physical or psychological harm, or both, to the children
involved.” Child Pornography Prevention Act of 1996, Pub.L.
No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996) (codified as
amended at 18 U.S.C. § 2251).12 Congress found that “where
children are used in its production, child pornography
permanently records the victim’s abuse, and its continued
existence causes the child victims of sexual abuse continuing

12
   We discuss these congressional findings even though they
were not made in relation to the recent 2003 PROTECT Act
amendments to § 2252A(b)(1). The issues discussed in the
congressional findings for the amendments to § 2251 discuss the
harm caused by child pornography, which the PROTECT Act
amendments were designed to directly combat. See S. Rep. No.
108-2, at 1 (2003) (stating that the PROTECT Act was designed
to “restore the government’s ability to prosecute child
pornography offenses successfully”). This Court has held that
we are able to examine congressional findings underlying other
acts where the findings discuss a matter closely related to the
issues underlying the presently analyzed law. See Rodia, 194
F.3d at 474 n.4 (analyzing the congressional findings for the
1978 Protection of Children Against Sexual Exploitation Act to
better understand the amendments made by Congress in 1990 to
§ 2252).

                               26
harm by haunting those children in future years.” Id. Moreover,
Congress found little distinction in the harm caused by a
pedophile, be he a distributor or mere consumer in child
pornography, because the mere “existence of and traffic in child
pornographic images creates the potential for many types of
harm in the community and presents a clear and present danger
to all children.” § 121, 110 Stat. at 3009-27. Furthermore, “it
inflames the desires of . . . pedophiles . . . who prey on children,
thereby increasing the creation and distribution 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.” Id.; see also New York v. Ferber, 458 U.S.
747, 757 (1982) (“The prevention of sexual exploitation and
abuse of children constitutes a government objective of
surpassing importance.”).

                                3.

        In light of the heavy burden that an appellant must carry
in order to show that his sentence is grossly disproportionate, it
is clear that MacEwan’s is not one of those rare cases where the
gravity of his crime of conviction is so outweighed by the
harshness of his sentence that we are led to reach “an inference
of gross disproportionality.” We therefore do not need to extend
our Eighth Amendment proportionality analysis to an
examination of the crimes committed and sentences received by
other defendants in the federal and state jurisdictions.13 See

13
    In so ruling, we decline to examine the statistics that
MacEwan has presented demonstrating the sentences prescribed
by various state jurisdictions as punishment for the possession

                                27
Rosenberg, 806 F.2d at 1176 (“Because we do not believe that
this case warrants an extended eighth amendment analysis, we
need not attempt to match defendants’ sentences with the
statistics.”). Although we agree that the 15-year sentence is
harsh, it was duly enacted by Congress as a punishment for
those who had repeatedly taken illicit advantage of one of the
most vulnerable segments of our society, its children.
Accordingly, we conclude that the 15-year mandatory minimum
sentence required by § 2252A(b)(1) for repeat child
pornography offenders is not a cruel and unusual punishment in
violation of the Eighth Amendment.

                              B.

        MacEwan next argues that the mandatory minimum
provision of § 2252A(b)(1) violates the separation of powers
doctrine. He contends that by enacting a statutory mandatory
minimum, Congress has “stripped the judiciary of its historic
role in the sentencing process and has transferred that judicial
power to the executive branch and deprived defendants and the
public of the right to, and social benefits of, individualized
sentences.” (MacEwan Br. at 42.) He argues that this system,
in effect, “‘unite[s] the power to prosecute and the power to


of child pornography. (See MacEwan Br. at 37 n.3.)
Furthermore, notwithstanding MacEwan’s entreaties to the
contrary, we also conclude that it is unnecessary for us to
conduct a comparative analysis between the sentence received
by an individual convicted of receiving child pornography a
second time and the sentences received for those convicted of
second-degree murder, kidnapping or rape. (See id. at 35-36.)

                              28
sentence within one Branch’” because it vests power in the
prosecutors to decide when to charge an offense triggering the
mandatory minimum sentencing provision. (Id. at 44 (quoting
Mistretta v. United States, 488 U.S. 361, 391 n.17 (1989)).)

        In considering MacEwan’s argument, we must first
address the nature of the separation of powers doctrine. In
Lujan v. Defenders of Wildlife, the Supreme Court observed
that “the Constitution’s central mechanism of separation of
powers depends largely upon common understanding of what
activities are appropriate to legislatures, to executives, and to
courts.” 504 U.S. 555, 559-560 (1992). Illustrating that
common understanding, in Eash v. Riggins Trucking Inc., this
Court stated that the “first sentence of the Constitution expressly
vests the legislative power in Congress, Art. I, § 1” and that
“Congress through its Article I, Section 8 power to enact those
laws that are ‘necessary and proper’ has the exclusive power to
define offenses and to establish penalties.” 757 F.2d 557, 573
(3d Cir. 1985).14 Conversely, in discussing prosecutors’ powers,
we have stated that “the decision whether or not to prosecute
and what charges to file generally rests within the prosecutor’s
broad discretion.” United States v. Esposito, 968 F.2d 300, 306

14
   In Eash, we were merely restating a maxim put forth almost
two hundred years ago by the Supreme Court in United States
v. Hudson and Goodwin, 11 U.S. (7 Cranch) 32 (1812).
Therein, the Court addressed the power of the judicial branch by
examining the power granted by the legislative branch, stating:
“The legislative authority of the Union must first make an act a
crime, affix a punishment to it, and declare the Court that shall
have jurisdiction of the offence.” Id. at 34.

                                29
(3d Cir. 1992).

       Turning now to the present dispute over mandatory
minimum sentences, we note that the Supreme Court has
specifically held that “Congress has the power to define criminal
punishments without giving the courts any sentencing
discretion.” Chapman v. United States, 500 U.S. 453, 467
(1991). Moreover, it has observed that “determinate sentences
were found in this country’s penal codes from its inception . . .
and some have remained to the present.” Id. (citations omitted).
Similarly, this Court has also acknowledged our traditionally
limited discretion in sentencing:

       While the pronouncement of sentence after a trial
       or a guilty plea may be an inherently judicial
       function, the proposition that specifying the
       sentence is an inherently judicial function is not
       supportable either by history or by the text of the
       Constitution. The Supreme Court has consistently
       recognized that Congress has plenary authority
       over the designation of appropriate punishment
       for federal crimes. See United States v. Grayson,
       438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582
       (1978); Ex parte United States, 242 U.S. 27, 42,
       37 S.Ct. 72, 74, 61 L.Ed. 129 (1916). The early
       practice was for Congress to prescribe specific
       punishments for specific crimes, and it was only
       much later that Congress delegated to the federal
       courts the broad discretion in sentencing which
       they have exercised in recent years. Grayson, 438
       U.S. at 45-46, 98 S.Ct. at 2613. The Supreme

                               30
       Court rejected the proposition that the power over
       sentencing is inherently judicial when it decided
       that Congress’ delegation of the authority to
       determine release dates to the Parole Commission
       validly implied that the judge has no enforceable
       expectations with respect to the release date, short
       of the statutory term. United States v. Addonizio,
       442 U.S. 178, 99 S.Ct. 2235, 60 L.Ed.2d 805
       (1979). Likewise, this court in Geraghty v.
       United States Parole Commission, 719 F.2d 1199,
       1208 (3d Cir. 1983), cert. denied, 465 U.S. 1103,
       104 S.Ct. 1602, 80 L.Ed.2d 133 (1984), squarely
       held that the legislation creating the federal parole
       board was not an impermissible delegation of an
       inherently judicial function. Thus, we hold that
       Congress may lawfully curtail judicial discretion
       in sentencing.

United States v. Frank, 864 F.2d 992, 1010 (3d Cir. 1988)
(addressing a similar contention that the Sentencing Reform Act
of 1984 unconstitutionally stripped the federal courts of their
traditional role in sentencing).

       As for MacEwan’s argument that the mandatory
minimum provision of § 2252A(b)(1) vests too much power in
prosecutors to decide the sentence of defendants via the
charging of specific triggering offenses, we have held that it is
“well settled that a legislature can exercise its right to limit
judicial discretion in sentencing by bestowing on prosecutors the
right to make decisions that may curtail judicial discretion.”
Ehrsam v. Rubenstein, 917 F.2d 764, 767 (3d Cir. 1990)

                                31
(rejecting appellant’s argument that the Sentencing Guidelines
vest an unconstitutional amount of discretion in prosecutors).

        It is the Congress that has the power to define a crime
and set its punishment. Notwithstanding that we judges may
have imposed a lesser sentence in the case before us, and
question the application of draconian mandatory minimum
sentences in some cases, our jurisprudential hands are tied. The
great Cardozo taught us long ago: “The judge, even when he is
free, is still not wholly free. He is not to innovate at pleasure.”
Benjamin N. Cardozo, The Nature of the Judicial Process 141
(1921). Although we recognize that a host of inequities inhere
in many large mandatory sentences, the relief must come from
the legislative arm of government and not from the judges of the
Third Article. Mandatory minimum sentencing provisions do
restrict, or in some cases strip, the courts of the power to impose
an individually-crafted sentence for a specific defendant;
nevertheless, we cannot agree that the use of mandatory
minimums violates the doctrine of separation of powers.
Accordingly, we may not disturb Congress’ power to define a
sentence for a crime unless the sentence mandated for a crime
offends the Constitution, i.e., is a cruel and unusual sentence or
offends the Due Process Clause of the Fifth Amendment. See
Chapman, 500 U.S. at 465 (citations omitted) (“[A] court may
impose, whatever punishment is authorized by statute for [an]
offense, so long as that penalty is not cruel and unusual . . . and
so long as the penalty is not based on an arbitrary distinction
that would violate the Due Process Clause of the Fifth
Amendment.”).

                                C.

                                32
       Finally, MacEwan argues that the mandatory minimum
sentencing provision of § 2252A(b)(1) is unconstitutional
because “the Due Process Clause dictates that [he] should have
been the recipient of individualized sentencing in connection
with the sentence to be imposed.” (MacEwan Br. at 45.) We
need not dwell upon this argument, however, because this Court
has repeatedly held that there is no due process right to
individualized sentences. See Ehrsam, 917 F.2d at 766 (“We
reaffirm our previously expressed view that the Due Process
Clause permits mandatory sentences.”); Frank, 864 F.2d at
1010.     Rather, “[a] sentencing scheme providing for
‘individualized sentences rests not on constitutional commands,
but on public policy enacted into statutes.’” Chapman, 500 U.S.
at 467. Accordingly, we determine that the 15-year minimum
sentence mandated by § 2252A(b)(1) does not offend the Due
Process Clause of the Fifth Amendment.

                               ***

       We therefore hold that the Internet is both a channel and
instrumentality of interstate commerce and that Congress can
regulate the downloading of child pornography over the Internet
under 18 U.S.C. § 2252A(a)(2)(B) even if the transmission
never crossed state lines. Moreover, because MacEwan
admitted that he downloaded the images from the Internet,
sufficient evidence existed for a trier of fact to find the interstate
commerce jurisdictional element of § 2252A(a)(2)(b) met
beyond a reasonable doubt. Finally, we conclude that the 15-
year mandatory minimum sentence of § 2252A(b)(1) offends
neither the Eighth Amendment prohibition on cruel and unusual
punishment, the separation of powers doctrine, nor the Due

                                 33
Process Clause of the Fifth Amendment. We will affirm the
conviction and sentence of the District Court.


______________________________




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