                             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.



                                              44
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.




                                    46
