                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0425n.06
                              Filed: June 22, 2006

                                        Nos. 05-1810/05-1835

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                             )
                                                      )
        Plaintiff-Appellee,                           )
                                                      )
v.                                                    )
                                                      )    ON APPEAL FROM THE UNITED
DANIEL SALAZAR,                                       )    STATES DISTRICT COURT FOR THE
                                                      )    WESTERN DISTRICT OF MICHIGAN
        Defendant-Appellant.                          )




        Before: DAUGHTREY and COLE, Circuit Judges, and GRAHAM,* District Judge.


        PER CURIAM. The defendant, Daniel Salazar, challenges the sentence imposed

following his conviction in two cases that were consolidated in the district court. In the first

case, a Michigan grand jury charged Salazar with using interstate facilities to entice a minor

to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b), and persuading a minor

to travel in interstate commerce to engage in sexual conduct, in violation of 18 U.S.C. §

2422(a). In the second case, a New Mexico grand jury indicted him for traveling in

interstate commerce for the purpose of engaging in illicit sexual conduct with a minor, in

violation of 18 U.S.C. § 2423(b), and for engaging in sexually explicit conduct with a minor

for the purpose of producing a photograph that was later transported in interstate

        *
         The Hon. James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
Nos. 05-1810/05-1835
United States v. Salazar

commerce, in violation of 18 U.S.C. § 2251(a). The latter case was transferred to

Michigan, where the defendant entered guilty pleas to three of the four counts in the two

indictments, pursuant to a plea agreement, and was sentenced to an effective sentence of

15 years, which is the statutory mandatory minimum sentence under § 2251.


        In the plea agreement, the defendant reserved the right to challenge the

constitutionality of the PROTECT Act,1 of which the amendment to § 2251 is a part. On

appeal, he has done so, arguing that a provision in the Act that increases the mandatory

minimum sentence for a violation of § 2251 from 10 to 15 years is unconstitutional because

it violates the “separation of powers” doctrine and that, as applied to his case, § 2251

violates the Commerce Clause. We find no merit to these two contentions and affirm the

judgment of the district court.


        The defendant bases his separation-of-powers argument on an Oregon district court

opinion, United States v. Detwiler, 338 F. Supp. 2d 1166 (D.Or. 2004), in which the court

held invalid the so-called Feeney Amendment, which was part of the PROTECT Act but

which involved the sentencing guidelines and not the increase in the mandatory minimum

sentence imposed in this case under § 2251. Salazar nevertheless argues that if the

Feeney Amendment is unconstitutional, as the Detwiler court held, then the entire


        1
          The legislation otherwise known as the PROTECT Act actually bears the awkward title of
Prosecutorial and Other Tools to end the Exploitation of Children Today Act. It includes a variety of provisions,
including the creation of a national “Amber Alert” notification program for child abductions and the increase
in sentence at issue here. The Feeney Amendment, which amended various provisions of the United States
Sentencing Guidelines and changed the composition of the federal Sentencing Commission, was added as
a rider to the Act.

                                                     -2-
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United States v. Salazar

PROTECT Act must be held invalid, and his sentence should therefore be reduced to the

ten-year mandatory minimum that predated the Act.


        Of course, a district court opinion from another circuit has little persuasive value at

this stage of the current litigation, even though the Oregon court’s description of the

PROTECT Act is certainly apt: “a smorgasbord of unrelated provisions stuffed into a single

bill for political reasons.” Id. at 1182. Moreover, the issue in Detwiler was not the

constitutionality of the entire Act but “whether the present federal Guidelines system, as it

has been constructed by Congress, passes constitutional muster.” Id. In addition, the

PROTECT Act has a severability clause2 that, in our judgment, would prevent the

invalidation of the amendment to § 2251 even if the Feeney Amendment were found to be

unconstitutional. See Plain Dealer Pub. Co. v. City of Lakewood, 794 F.2d 1139, 1147-48

(6th Cir. 1986) (“The Supreme Court has held that invalid portions of a statute should be

severed unless it is clear that the Legislature would not have enacted those provisions which

are constitutional, independent of those provisions which are not.”). We therefore conclude

that there is no merit to the defendant’s challenge to the PROTECT Act.


        Salazar also challenges his conviction under § 2251(a) on the ground that Congress

“did not have the power to criminalize this type of private activity” because there is an



        2
         Section 2 of the Act provides: “If any provision of this Act, or the application of such provision to any
person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other
persons not similarly situated or to other circumstances, shall not be affected by such invalidation.” Pub.L.
No. 108-21, § 2, 117 Stat. at 651.


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United States v. Salazar

insufficient nexus between the pornographic photograph of the minor and interstate

commerce, based on the Supreme Court’s opinions in United States v. Lopez, 514 U.S. 549

(1995), and United States v. Morrison, 529 U.S. 598 (2000), and our opinion in United

States v. Corp, 236 F.3d 325 (6th Cir. 2001). In the latter case, we reversed a conviction

under the PROTECT Act, holding that proof that the paper used to develop photographs of

child pornography had traveled interstate was insufficient to implicate the Commerce

Clause. However, the opinion in Corp predates the Supreme Court’s recent decision in

Gonzales v. Raich, 545 U.S. 1 (2005), and our application of that decision to a § 2251

conviction in United States v. Chambers, 441 F.3d 438 (6th Cir. 2006). The thorough

analysis in the Chambers case need not be reiterated here. Given the proof in the record

that the photograph in question was transmitted across state lines by means of the Internet,

it is sufficient to note that for the reasons set out in Chambers, the constitutional challenge

in this case must likewise fail.


       AFFIRMED.




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