                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                 March 7, 2006
                                       TENTH CIRCUIT
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,
            v.                                                 No. 04-4158
 BRENT LEE CROXFORD, a/k/a Brent                      (D.C. No. 2:02-CR-00302 PGC)
 Croxford,                                                   (District of Utah)

                 Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before BRISCOE, PORFILIO, Circuit Judges, and BROWNING, District Judge.**



       Defendant-Appellant Brent Croxford appeals his sentence of 148 months for

coercing a minor to engage in sexually explicit conduct for the purpose of producing a

visual depiction of the conduct. Croxford raises two issues on appeal: (i) whether 18

U.S.C. § 2251(a) is facially unconstitutional or unconstitutional as applied;1 and (ii)

       *
          This Order and Judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.

        The Honorable James O. Browning, United States District Judge for the District
       **

of New Mexico, sitting by designation.
       1
          Croxford also raises on appeal whether 18 U.S.C.§ 2252A(a)(5)(B) is facially
unconstitutional or unconstitutional as applied. We will not, however, discuss the
constitutionality of 18 U.S.C. § 2252A(a)(5)(B) -- Count II of the Indictment. Croxford
whether the district court committed constitutional error when it applied the Guidelines in

an advisory manner and enhanced the Defendant’s sentence based on judicially-found

facts. Section 2251(a), which criminalizes the intrastate production of child pornography,

is facially constitutional and constitutional as applied to Croxford’s conduct. Because the

statute’s application to Croxford’s conduct is constitutional, and the district court applied

the Guidelines in an advisory rather than in a mandatory fashion, we affirm the conviction

and the sentence.




pled to Count I, and the United States moved the district court to dismiss Count II. While
the parties have continued to address the constitutionality of 18 U.S.C. § 2252A(a)(5)(B)
in their briefs, the district court dismissed that charge. See e.g., United States v.
Randolph, 364 F.3d 118, 119 n. 1 (3d Cir. 2004) (noting that, while the defendant
appealed conviction for violating § 2251(a), he could not challenge § 2252(a)(4)(B),
under which he was indicted but not convicted, because the United States later dismissed
the count). Hence, we address only the “production” statute and not the “possession”
statute.

                                             -2-
                            FACTUAL BACKGROUND2

       In November 2001, “C.C.,” a young girl, approximately eight or nine years old,

disclosed to Lori Thomassen, a caseworker from the Utah Division of Children and

Family Services, and Detective Craig Ellerston, with the South Jordan Police Department,

that Croxford, her adoptive father, had taken nude photographs of her with a digital

camera. C.C. described the sexually explicit poses that Croxford asked her to perform in

the photographs. C.C. also stated that she believed Croxford put these photographs on the

Internet and that he had taken similar photographs of another young girl who had been a

foster child in the Croxford home.

       Ellerston interviewed Croxford, who stated that he had taken “bathtub”

photographs of C.C. Croxford also confirmed in the interview that he owned a Sony

digital camera and was an Internet provider for certain customers. He also told Ellerston

that he repaired and worked on computers in his home. At the conclusion of the

interview, Croxford stated in reference to the sexually explicit pictures C.C. described: “I

meant to delete all of those;” and “You should take me out and shoot me.” Order

Denying Motion to Dismiss at 2.

       Based on this information, Ellerston obtained a search warrant for the Croxford

home. During the warrant’s execution, the officers discovered several computer diskettes


       2
         The facts we recite in this section are taken from the district court’s Order
Denying Motion to Dismiss (filed July 2, 2004). The record provided by the parties does
not contain the transcript of the hearing on Croxford’s motion to dismiss or any other
underlying evidence. The parties do not appear, however, to contest these facts.

                                             -3-
in a file cabinet that contained sexually explicit pictures of C.C. The officers also

examined Croxford’s computer equipment and discovered that he had downloaded

thousands of pornographic images, including child pornography. The computer

equipment, the computer diskettes, and the Sony digital camera that the officers took

from Croxford’s home were manufactured outside of the state of Utah. See id.

                           PROCEDURAL BACKGROUND

       A federal grand jury indicted Croxford on charges of production of child

pornography and possession of child pornography based on C.C.’s testimony regarding

the digital photographs and the images of C.C. found on the computer diskettes. Count I

of the indictment charged Croxford with coercing a minor to engage in sexually explicit

conduct for the purpose of producing a visual depiction of such conduct, which visual

depiction was produced using materials that have been transported in interstate

commerce, in violation of 18 U.S.C. § 2251(a).

       Croxford filed a motion to dismiss, arguing that the conduct alleged in the

indictment -- the intrastate production of child pornography -- was beyond Congress’

authority to regulate under the Commerce Clause of Article I of the United States

Constitution. The district court denied the motion, concluding that the Commerce Clause

gives Congress the power to enact the criminal statute under which the grand jury

indicted Croxford. See Order Denying Motion to Dismiss at 1. Croxford subsequently

pled guilty to Count I of the indictment. He stipulated to the following facts:

       Between on or about an unknown date and continuing through November

                                             -4-
       22, 2001, defendant took and possessed sexually explicit photographs of his
       adopted nine-year old daughter with his digital camera. The images were
       produced using materials, including the digital camera, computers, and
       computer diskettes, that were mailed, shipped, and transported in interstate
       commerce. The defendant’s actions violated Title 18, United States Code,
       Section 2251.

Statement By Defendant in Advance of Plea of Guilty ¶ 12, at 4 (filed Feb. 25,

2004)(hereinafter “Statement in Advance of Plea”). The Statement in Advance of Plea

also specified that Croxford retained his right to appeal the district court’s order denying

his motion to dismiss for lack of jurisdiction. See id. ¶ 13(3)(A), at 5.

       Based on these stipulated facts and the presentence report’s recommendation,

Croxford faced a then-mandatory Sentencing Guideline range of 121-151 months. The

Supreme Court of the United States decided Blakely v. Washington, 542 U.S. 296 (2004),

shortly before the district court sentenced Croxford. At the sentencing, the district court

applied Blakely to the Federal Sentencing Guidelines to hold that they violated the Fifth

and Sixth Amendments. In so holding, the district court struck the Guidelines down as

facially unconstitutional and unconstitutional as applied to Croxford. After striking down

the Guidelines, the district court believed that it was free to examine all “relevant”

information in determining Croxford’s sentence. See United States v. Croxford, 324 F.

Supp. 2d 1230, 1247-49 (D. Utah 2004). Predicting the Supreme Court’s conclusion in

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), that the Guidelines are

advisory and not mandatory, the district court looked to the Guidelines as “useful

instruction on the appropriate sentence.” 324 F. Supp. 2d at 1248. The district court also


                                              -5-
looked at Croxford’s psychiatric history, the victim’s vulnerability, and the offense’s

seriousness. Using the Guidelines as a guide, the district court then sentenced Croxford

to a term of 148 months. See id. at 1248.

                          LOPEZ, MORRISON, AND RAICH

       Under the Commerce Clause, Congress is authorized “[t]o regulate Commerce

with foreign Nations, and among the several States, and with the Indian Tribes.” U.S.

Const. art. I, § 8, cl. 3. This power is not limitless, however. See United States v. Lopez,

514 U.S. 549, 553 (1995). As the Supreme Court explained in Gonzales v. Raich, 545

U.S. ___, 125 S. Ct. 2195 (2005), there are “three general categories of regulation in

which Congress is authorized to engage under its commerce power.” Id. at 2205.

Congress may regulate: (i) “the channels of interstate commerce;” (ii) “the

instrumentalities of interstate commerce, or persons or things in interstate commerce,

even though the threat may come only from intrastate activities;” and (iii) “activities that

substantially affect interstate commerce.” United States v. Lopez, 514 U.S. at 558-59.

See Gonzales v. Raich, 125 S. Ct. at 2205. In United States v. Lopez, the Supreme

Court’s decision whether gun possession in school zones substantially affected interstate

commerce turned on four considerations. See 514 U.S. at 559-67. The Supreme Court

considered: (i) whether the statute regulated economic activity; (ii) whether the statute

contained an express jurisdictional element that might limit its reach; (iii) whether

Congress made findings about the prohibited activity’s effect on interstate commerce; and

(iv) whether there was a substantial, non-attenuated link between the prohibited activity

                                             -6-
and its effect on interstate commerce. See United States v. Morrison, 529 U.S. 598, 609-

12 (2000).

       Morrison clarified the “substantially affects” test and elaborated on the controlling

four factors for determining whether a regulated activity substantially affects interstate

commerce. First, a court must determine whether the challenged statute has anything to

do with “commerce” or economic enterprise, however broadly one might define those

terms. Second, a court must consider whether the statute contains an express

jurisdictional element which might limit its reach to a discrete set of cases that have an

explicit connection with or effect on interstate commerce. Third, any congressional

findings regarding the regulated activity’s impact on interstate commerce may inform the

court’s inquiry. Finally the court must consider whether the link between the regulated

activity and a substantial effect on interstate commerce is attenuated. See Id. at 610-13.

       In Gonzales v. Raich, 125 S. Ct. 2195, the Supreme Court did not explicitly refer

to or use these four considerations to analyze the statute in that case. Justice Scalia, in his

opinion concurring in the judgment, also did not expressly mention these four

considerations. Without more express direction from the Supreme Court, however, we do

not believe we should jettison the Lopez-Morrison framework when addressing the facial

challenge. The Supreme Court in Gonzales v. Raich does not say that it is going that far.

The absence of the Lopez-Morrison analysis in Gonzales v. Raich may be the result of the

Supreme Court’s self-described “modest” task in that case:

       Respondents in this case do not dispute that passage of the [Controlled

                                              -7-
       Substances Act], as part of the Comprehensive Drug Abuse Prevention and
       Control Act, was well within Congress’ commerce power. Nor do they
       contend that any provision or section of the CSA amounts to an
       unconstitutional exercise of congressional authority. Rather, respondents’
       challenge is actually quite limited; they argue that the CSA’s categorical
       prohibition of the manufacture and possession of marijuana as applied to
       the intrastate manufacture and possession of marijuana for medical
       purposes pursuant to California law exceeds Congress’ authority under the
       Commerce Clause.

Gonzales v. Raich, 125 S. Ct. at 2204-2205 (emphasis added)(citations omitted). In other

words, Gonzales v. Raich dealt merely with an as-applied challenge, as opposed to a

facial one, to the CSA under the commerce clause. We do not read Gonzales v. Raich to

completely dispense with the Lopez-Morrison framework for addressing a facial

challenge. Indeed, as the majority in Gonzales v. Raich explain, the two challenges are

distinct and the distinction is pivotal:

       As an initial matter, the statutory challenges at issue in [Lopez and
       Morrison] were markedly different from the challenge respondents pursue
       in the case at hand. Here, respondents ask us to excise individual
       applications of a conceded valid statutory scheme. In contrast, in both
       Lopez and Morrison, the parties asserted that a particular statute or
       provision fell outside Congress’ commerce power in its entirety. This
       distinction is pivotal for we have often reiterated that “where the class of
       activities is regulated and that class is within the reach of federal power, the
       courts have no power ‘to excise, as trivial, individual instances’ of the
       class.”

125 S. Ct. at 2209 (citations omitted). Without further guidance from the Supreme Court,

we are hesitant to scrap the Lopez-Morrison approach employed by every circuit that has

addressed facial challenges to § 2251(a) and analogous statutes under the Commerce

Clause, and will still use the four Lopez-Morrison factors as a checklist in analyzing the


                                             -8-
statute. The Court will, however, employ Gonzales v. Raich to address Croxford’s as-

applied challenge.

                                        DISCUSSION

       Here, as in Lopez and Morrison, Croxford asserts that § 2251(a), which

criminalizes purely intrastate production of child pornography, falls outside Congress’

commerce power in its entirety. Alternatively, he asserts that, even if § 2251(a) is within

Congress’ commerce power, it is unconstitutional as applied to him. Under the Supreme

Court’s analysis in Lopez and Morrison, the Court finds § 2251(a) constitutional. And

because Raich controls our analysis of Croxford’s as-applied challenge, the Court rejects

such challenge.

I.     SECTION 2251(a) IS FACIALLY CONSTITUTIONAL.

       We review “challenges to the constitutionality of a statute de novo.” United States

v. Dorris, 236 F.3d 582, 584 (10th Cir. 2000). The district court considered whether it

could uphold the challenged statute under both the second and third categories, evaluating

the statute’s constitutionality under both a “things-in-commerce” and a “substantially

affecting commerce” analysis. Order Denying Motion to Dismiss, at 6-13. Because we

believe that this statute fits within the third category, the substantially affects test, and that

we can uphold its constitutionality under the four Lopez-Morrison factors for that

category, we need not and will not address the statute’s constitutionality under the second

category -- instrumentalities of interstate commerce. See Ashwander v. Tenn. Valley

Auth., 297 U.S. 288, 347 (1936)(Brandeis, J., concurring)(“The Court will not pass upon

                                               -9-
a constitutional question although properly presented by the record, if there is also present

some other ground upon which the case may be disposed of.”).

       A.     Congress May Constitutionally Regulate Intrastate Economic Activities
              That, In The Aggregate, Substantially Affect Interstate Commerce.

       The Supreme Court’s case law “firmly establishes Congress’ power to regulate

purely local activities that are part of an economic ‘class of activities’ that have a

substantial effect on interstate commerce.” Gonzales v. Raich, 125 S. Ct. at 2205. See

United States v. Lopez, 514 U.S. at 560 (“Where economic activity substantially affects

interstate commerce, legislation regulating that activity will be sustained.”); United States

v. Morrison, 529 U.S. at 610 (“[W]e have upheld a wide variety of congressional Acts

regulating intrastate economic activity where we have concluded that the activity

substantially affected interstate commerce.”)(citation omitted). In Gonzales v. Raich, the

Supreme Court set forth a broad definition of economic activities to include not only the

“production” and “distribution” of commodities, but their “consumption” as well. 125 S.

Ct. at 2211 (“‘Economics’ refers to ‘the production, distribution, and consumption of

commodities.’”)(quoting Webster’s Third New International Dictionary 720 (1966)).

When regulated activities can be classified as economic in nature, then, as the Supreme

Court articulated in Gonzales v. Raich, it is not a court’s role to determine whether the

regulated “activities, taken in the aggregate, substantially affect interstate commerce in

fact, but only whether a ‘rational basis’ exists for so concluding.” 125 S. Ct. at 2208

(quoting United States v. Lopez, 514 U.S. at 557).


                                             -10-
       The Supreme Court first defined this aggregation doctrine in Wickard v. Filburn,

317 U.S. 111, 128-29 (1942). In Wickard, the Supreme Court held that Congress’

Commerce Clause authority supported the federal regulation of home-grown wheat,

which was planted, cultivated, and consumed within the intrastate confines of a family

farm. See id. The Supreme Court reasoned that, because rising market prices could draw

this home-grown wheat into the interstate market and undermine Congress’ price control

scheme, “Congress had a rational basis for believing that, when viewed in the aggregate,

leaving home-consumed wheat outside the regulatory scheme would have a substantial

influence on price and market conditions.” Gonzales v. Raich, 125 S. Ct. at 2207.

“Wickard thus establishes that Congress can regulate purely intrastate activity that is not

itself ‘commercial,’ in that it is not produced for sale, if it concludes that failure to

regulate that class of activity would undercut the regulation of the interstate market in that

commodity.” Id. at 2206.

       Over sixty years later, the Supreme Court reaffirmed the ongoing validity of the

aggregation doctrine. In Gonzales v. Raich, the Supreme Court upheld Congress’

authority to prohibit the intrastate manufacture and possession of marijuana for medical

purposes. See 125 S. Ct. at 2201. Like the wheat at issue in Wickard v. Filburn, the

Supreme Court reasoned that high demand increased the likelihood that the respondents’

home-grown marijuana would be drawn into the interstate market, thus frustrating

congressional efforts to eliminate the commodity entirely. See id. at 2206-07. The

Supreme Court found rational Congress’ conclusion that, if left unregulated, home-grown


                                              -11-
marijuana could, in the aggregate, have “a substantial effect on supply and demand in the

national market.” Id. at 2207.

              1.     Congressional findings.

       Any congressional findings regarding the regulated activity’s impact on interstate

commerce may inform the court’s inquiry. We recently rejected an as-applied challenge

to § 2251(a) in United States v. Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).

Although Jeronimo-Bautista involved an as-applied challenge to § 2251(a) rather than a

facial challenge, its reasoning and findings are instructive in this case. As we did in

Jeronimo-Bautista, we start here with congressional history. In Jeronimo-Bautista, we

cited, extensively, the congressional history of the Act:

       When Congress first passed the Protection of Children Against Sexual
       Exploitation Act of 1977, it noted that child pornography . . . has become a
       highly organized, multimillion dollar industry that operates on a nationwide
       scale . . . and that the sale and distribution of such pornographic materials
       are carried on to a substantial extent through the mails and other
       instrumentalities of interstate and foreign commerce. Findings supporting
       the 1977 Act also noted that since the production, distribution and sale of
       child pornography is often a clandestine operation, it is extremely difficult
       to determine its full extent. At present, however, a wide variety of child
       pornography is available in most areas of the country. Moreover, because
       of the vast potential profits involved, it would appear that this sordid
       enterprise is growing at a rapid rate.

       Amendments to the Act in 1984 eliminated the requirement that the
       production, receipt, transportation, or distribution of child pornography be
       for a pecuniary profit. The purpose of this amendment was to eliminate an
       enforcement gap in the statute: Many of the individuals who distribute
       materials covered [by the statute] do so by gift or exchange without any
       commercial motive and thus remain outside the coverage of this provision.
       Likewise, in 1984, in support of § 2251, Congress echoed its findings
       supporting the original 1977 legislation, stating in part that child


                                            -12-
      pornography has developed into a highly organized, multi-million-dollar
      industry which operates on a nationwide scale.

      In 1996, Congress further amended the Act regarding the electronic creation
      of child pornography. The findings supporting those amendments noted
      that the existence of . . . child pornographic images . . . inflames the desires
      of child molesters, pedophiles, and child pornographers who prey on
      children, thereby increasing the creation and distribution of child
      pornography. Congress also stated that prohibiting the possession and
      viewing of child pornography will encourage the possessors of such
      material to rid themselves of or destroy the material, thereby helping to
      protect the victims of child pornography and to eliminate the market for the
      sexual exploitative use of children. Finally, in a 1998 amendment to the
      Act, a jurisdictional element was added to cover child pornography created
      using materials that have been mailed, shipped, or transported in interstate
      or foreign commerce by any means. This addition reflected Congress’
      concern about federal law enforcement’s current inability to prosecute a
      number of cases where the defendant produced the child pornography but
      did not intend to transport the images in interstate commerce.

425 F.3d at 1269-71 (citations, footnotes, and internal quotations omitted).

      As we acknowledged in Jeronimo-Bautista, “Congress may not have

engaged in specific fact finding regarding how the intrastate production of child

pornography substantially affects the larger interstate pornography market.” Id.

at 1271. The Supreme Court, however, “has ‘never required Congress to make

particularized findings to legislate.’” Id. (quoting Raich 125 S. Ct. at 2208). The

Supreme Court in Raich explained:

      While congressional findings are certainly helpful in reviewing the
      substance of a congressional statutory scheme, particularly when the
      connection to commerce is not self-evident, and while we will
      consider congressional findings in our analysis when they are
      available, the absence of particularized findings does not call into
      question Congress’ authority to legislate.



                                            -13-
125 S. Ct. at 2208.

       In Raich, the Court emphasized that it had “never required Congress to

legislate with scientific exactitude. When Congress decides that the ‘total

incidence’ of a practice poses a threat to a national market, it may regulate the

entire class.” 125 S. Ct. at 2206-07. Here, Congress made findings regarding

intrastate commerce. The legislative history of § 2251(a), cited above, explains

why Congress included local activities within the scope of its regulatory scheme.

In Jeronimo-Bautista, upon review of the statute’s legislative history that we

quoted above and in agreement with the First Circuit, we accordingly concluded

that “Congress’ explicit findings regarding the extensive national market in child

pornography and the need to diminish that national market support the contention

that prohibiting the production of child pornography at the local level helps to

further the Congressional goal.” 425 F.3d at 1271 (quoting United States v.

Morales-de Jesus, 372 F.3d 6, 12 (1st Cir. 2004)). 3

              2.      The economic nature of the regulated activity.

       We must next determine whether the challenged statute has anything to do

with “commerce” or economic enterprise, however broadly one might define

       3
          We agree with the district court’s suggestion that the legislative history of these
statutes may, in fact, be “outdated,” because much of the data on which Congress relied
predates the explosion of child pornography and Internet access in recent years. Order
Denying Motion to Dismiss, at 11. We further share the district court’s suspicion that the
current market for child pornography is even more far reaching and poses an even greater
threat to children and society than did the market that existed when Congress originally
enacted these statutes. See id. at 11-12.

                                            -14-
those terms. The district court considered § 2251 and concluded that “there can

be little disagreement that production of child pornography is economic in

nature.” Order Denying Motion to Dismiss at 9 (citing United States v. Buculei,

262 F.3d 322, 329 (4th Cir. 2001)).

      We also have no hesitation finding that the production of child pornography

is economic in nature. The Supreme Court has acknowledged the interstate

market for child pornography. See Ashcroft v. Free Speech Coalition, 535 U.S.

234, 249 (2002); New York v. Ferber, 458 U.S. 747, 760 (1982); Osborne v.

Ohio, 495 U.S. 103, 110 (1990). See also United States v. Buculei, 262 F.3d at

329. Additionally, the congressional findings cited above indicate that production

of child pornography is economic in nature. The Protection of Children Against

Sexual Exploitation Act of 1977 (hereinafter “Act”) prohibits the production,

receipt, transmission and possession of child pornography. See 18 U.S.C. §§

2251, 2252, 2252A. By this Act, Congress has undertaken to extinguish the

interstate market for child pornography. The Commerce Clause permits that

exercise of power.

      Unlike the regulated activity in Lopez and Morrison, the nature of

producing child pornography -- even purely intrastate -- makes it an economic

activity. There is undoubtedly a market for it. This conclusion is suggested by

the numerous congressional findings and those of other circuits, which show that

child pornography is a multimillion dollar industry operating on a nationwide


                                       -15-
scale.

         Additionally, the Supreme Court’s decision in Gonzales v. Raich supports

the district court’s conclusion that § 2251(a) regulates economic activities.

Section 2251(a)’s prohibition on the production of child pornography fits squarely

within Gonzales v. Raich’s definition of “economic,” which explicitly

encompasses the “production” of a commodity. 125 S. Ct. at 2211. See United

States v. Jeronimo-Bautista, 425 F.3d at 1269-71 (“Like the [Controlled

Substances Act in Raich], the child pornography statutes regulate the ‘production,

distribution, and consumption of commodities for which there is an established,

and lucrative, interstate market.’ Congress’ prohibition against the intrastate

possession or manufacture of child pornography ‘is a rational (and commonly

utilized) means of regulating commerce in that product.’”)(quoting Gonzales v.

Raich 125 S. Ct. at 2211 and citing United States v. Morales-de Jesus, 372 F.3d 6,

12 (1st Cir. 2004)).

               3.      Link between production of child pornography and its
                       substantial effect on interstate commerce.

         “[T]he task before us is a modest one. We need not determine whether

[Croxford’s] activities, taken in the aggregate, substantially affect interstate

commerce in fact, but only whether a ‘rational basis’ exists for so concluding.”

Gonzales v. Raich, 125 S. Ct. at 2208.

         Wickard and Raich control our analysis of the link between the regulated



                                         -16-
activity and its effect on interstate commerce. See United States v. Jeronimo-

Bautista, 425 F.3d at 1271-73; United States v. Morales-de Jesus, 372 F.3d at 15

(“The seminal case in this area remains Wickard v. Filburn, 317 U.S. 111.”).

While there are differences between the production of child pornography for

personal use here and the commodities in Wickard and Raich, 4 the similarities

between this case and Wickard and Raich are strong, and the differences do not

have constitutional significance. The differences do not diminish the precedential

force of Wickard and Raich.

       First, Wickard and Raich involved “a fungible commodity for which there

is an established . . . interstate market   .” Gonzales v. Raich, 125 S. Ct. at 2206.

As we stated in Jeronimo-Bautista, “[c]hild pornography is [as] equally fungible

[as marijuana] and there is no question an established market exists for its sale

and exchange.” 425 F.3d at 1273. Second, like the farmer in Wickard and the

user in Raich, Croxford produced a commodity for, at a minimum, home

consumption. Just as the Agricultural Adjustment Act at issue in Wickard “was

designed ‘to control the volume [of wheat] moving in interstate and foreign

commerce,’ ” Gonzales v. Raich, 125 S. Ct. at 2206 (modification in


       4
         For example, the wheat market is a lawful market that Congress sought to
protect and stabilize, whereas the marijuana and child pornography markets are unlawful
markets that Congress has sought to eradicate. See Gonzales v. Raich, 125 S. Ct. at 2207
n. 29. The difference, however, is if no constitutional import. Congress’ power to
regulate commerce includes the power to prohibit commerce in a particular commodity.
See id.

                                             -17-
original)(quoting Wickard v. Filburn, 317 U.S. at 115), and the Controlled

Substances Act at issue in Raich was designed “to control the supply and demand

of controlled substances,”   id. at 2207, the primary purpose of § 2251(a) is to curb

the national supply and demand for child pornography,      see United States v.

Morales-de Jesus , 372 F.3d at 15-16.

      Like the Supreme Court in Wickard and Raich, we have no difficulty

concluding that Congress had a rational basis for believing that, when viewed in

the aggregate, leaving home-consumed child pornography outside the regulatory

scheme would have a substantial influence on price and market conditions. A

rising demand in the interstate market could raise prices, and thus draw child

pornography, originally produced for home consumption, into the interstate

market. This resulting increased supply in the interstate market could eventually

result in decreased prices, which would then make it less expensive for

individuals to purchase child pornography. The diversion of home-created child

pornography could frustrate the federal interest in eliminating transactions in the

interstate market in their entirety. See United States v. Morales-de Jesus, 372

F.3d at 16-17 (“The prohibition on intrastate production curbs the supply of child

pornography at its source, before it is released into the interstate market. . . .

Often, as is the case here, it is necessary to control local behavior to ensure the

effectiveness of interstate regulation.”). The regulation is “squarely within

Congress’ commerce power because production of the commodity meant for home

                                          -18-
consumption, be it wheat . . ., marijuana or child pornography, has a substantial

effect on supply and demand in the national market for the commodity.”       United

States v. Jeronimo-Bautista , 425 F.3d at 1273 (quoting   Raich , 125 S. Ct. at 2207).

      Moreover, it is virtually impossible to distinguish between child

pornography manufactured and distributed intrastate from child pornography

manufactured and distributed interstate. Given the enforcement difficulties that

attend distinguishing between child pornography produced locally and child

pornography produced elsewhere, and concerns about diversion into interstate

channels, we conclude that Congress had a rational basis for believing that failure

to regulate the intrastate manufacture and possession of child pornography would

leave a gaping hole in its attempt to eliminate the market for child pornography.

The failure of Congress to regulate the intrastate activity at issue here “could . . .

undercut” its regulation of interstate commerce. United States v. Lopez, 514 U.S.

at 561. Thus, as in Wickard and in Raich, Congress’ enactment of comprehensive

legislation to regulate the interstate market in the commodity of child

pornography, is within its authority “to regulate Commerce . . . among the several

States.” U.S. Const. art I, § 8. “That the regulation ensnares some purely

intrastate activity is of no moment.” Gonzales v. Raich, 125 S. Ct. at 2209. The

Supreme Court in Raich refused to excise individual components of that larger

scheme. We should not do so either.

      In light of the wealth of congressional findings on child pornography’s

                                          -19-
effect on interstate commerce, and Supreme Court and Tenth Circuit precedent,

we conclude that Congress rationally found that the intrastate production of child

pornography, in the aggregate, substantially affects interstate commerce. Cf.

Gonzales v. Raich, 125 S. Ct. at 2219 (Scalia, J., concurring in the

judgment)(“That simple possession is a non-economic activity is immaterial to

whether it can be prohibited as a necessary part of a larger regulation.”).

             4.    Express jurisdictional element.

       We noted in Jeronimo-Bautista:

      Section 2251(a) includes a jurisdictional element as required by the
      Lopez/Morrison factors. While other courts have questioned the
      sufficiency of § 2251(a)’s jurisdictional element, see Morales-de
      Jesus, 372 F.3d at 13-14; [United States v.] Holston, 343 F.3d [83,]
      88-89 [(2d Cir. 2003)]; [United States v.] Rodia, 194 F.3d [465,]
      471-74 [(3rd Cir. 1999)], we need not linger on this issue. In light of
      the Supreme Court’s ruling in Raich, and our conclusion that the
      activity regulated in this case has a substantial impact on interstate
      commerce, any “failure of the jurisdictional element effectively to
      limit the reach of the statute is not determinative.”

425 F.3d at 1273 n. 4 (quoting United States v. Holston, 343 F.3d at 89).

      Here the “activity on the whole” -- when reviewed through the lens of the

remaining Lopez-Morrison factors -- “bears a significant relationship to interstate

commerce.” United States v. Holston, 343 F. 3d at 89. Thus, when Croxford

argues that the statute’s jurisdictional element, requiring that the regulated child

pornography must have been produced using materials that have been mailed,

shipped, or transported in interstate or foreign commerce, lacks a principled limit



                                         -20-
on Congress’ authority to regulate, that objection is not sufficient, alone, to defeat

Congress’ legislative authority to enact this statute. See Appellant’s Brief at 19-

20. 5

        The district court, citing United States v. Rodia, 194 F.3d at 471-73, held,

along with several circuits, that this “materials-in-commerce” jurisdictional

element, on its own, is inadequate to confer congressional authority over the

intrastate production and simple possession of child pornography. Order Denying

Motion to Dismiss, at 10. Despite this conclusion, the district court upheld the

statute, reasoning that the jurisdictional element did not bear sole responsibility

for establishing the statute’s impact on interstate commerce. See id. at 13. We

do not believe that we need to decide this issue because we hold that Congress

rationally concluded that the regulated activities, in the aggregate, substantially

affect interstate commerce, and, hence, acted within its constitutional authority in

enacting this statute, irrespective of the sufficiency of the statute’s jurisdictional

element. See United States v. Holston, 343 F.3d at 89; United States v. Morales-

de Jesus, 372 F.3d at 21 (“[T]he disconnect between the interstate commerce

        5
          In his brief, Croxford also implies that, because the statute contains a “materials-
in-commerce,” rather than a “substantially affects commerce” jurisdictional element, we
may only evaluate the statute’s constitutionality under Lopez’ second category. See
Appellant’s Brief at 18-19. The appellant, however, cites no authority for this
proposition, and we have not found any case law to support this assertion. Croxford’s
position lacks merit. Congress’ task is to pass constitutional legislation; the courts’ task
is to interpret and apply constitutional laws. That Congress may have read Supreme
Court cases and tried to ensure the constitutionality of its legislation by one means does
not preclude the law enacted from being constitutional on other grounds.

                                             -21-
activity described in the jurisdictional element of § 2251(a) and the interstate

commerce activity (the national market for child pornography) that prompted

Congress to criminalize the production of child pornography is not fatal to the

constitutionality of the statute.”).

      B.     Lopez and Morrison do not Suggest a Different Result.

      Croxford places heavy reliance on the Supreme Court’s decisions in United

States v. Lopez and United States v. Morrison. The statutes at issue in those two

cases, however, were different from the statute at issue in this case. “At issue in

Lopez was the validity of the Gun-Free School Zones Act of 1990, which was a

brief, single-subject statute making it a crime for an individual to possess a gun in

a school zone.” Gonzales v. Raich, 125 S. Ct. at 2209 (citation omitted).

Morrison involved the Violence Against Women Act of 1994 which “created a

federal civil remedy for the victims of gender-motivated crimes.” Id. at 2210.

Unlike the Protection of Children Against Sexual Exploitation Act of 1977, the

statutes at issue in Lopez and Morrison were not “a comprehensive framework for

regulating the production, distribution, and possession of [a commodity].” Id.

      In both Lopez and Morrison, the parties asserted that the statute at issue fell

outside Congress’ power in its entirety. Croxford, however, does not suggest that

Congress has no power to regulate child pornography; he argues that § 2251(a) is

unconstitutional because it implicates purely intrastate activity. This distinction

is pivotal. The Supreme Court has often reiterated that, “[w]here the class of


                                         -22-
activities is regulated and that class is within the reach of federal power, the

courts have no power ‘to excise as trivial, individual instances’ of the class.”

Gonzales v. Raich, 125 S. Ct. at 2209 (citing Perez v. United States, 402 U.S.

146, 154 (1971)).

      In Lopez, the Supreme Court distinguished the Gun-Free School Zones Act

of 1990 from other statutes that it had upheld:

      Section 922(q) is a criminal statute that by its terms has nothing to
      do with ‘commerce’ or any sort of economic enterprise, however,
      broadly one might define those terms. Section 922(q) is not an
      essential part of a larger regulation of economic activity, in which
      the regulatory scheme could be undercut unless the intrastate activity
      were regulated.

United States v. Lopez, 514 U.S. at 561. The Supreme Court concluded the

statute was invalid because it “did not regulate any economic activity and did not

contain any requirement that the possession of a gun have any connection to past

interstate activity or a predictable impact on future commercial activity.”

Gonzales v. Raich, 125 S. Ct. at 2209.

      Similarly, in Morrison, the Supreme Court explained that “thus far in our

Nation’s history our cases have upheld Commerce Clause regulation of intrastate

activity only where that activity is economic in nature.” United States v.

Morrison, 529 U.S. at 613. The Supreme Court held the Violence Against

Women Act of 1994 unconstitutional because it did not regulate economic

activity. See id. (“Gender-motivated crimes of violence are not, in any sense of



                                          -23-
the phrase, economic activity.”)

      The statutory scheme that the United States is defending in this litigation is

more similar to the statutory scheme in Wickard and in Raich than to the statutes

in Lopez and Morrison. The Act aims to extinguish the interstate market for child

pornography by prohibiting its production, receipt, transmission and possession.

Because the Act is a statute that directly regulates economic activity, the Supreme

Court’s opinions in Lopez and Morrison do not cast doubt on its constitutionality.

II.   SECTION 2251(a) IS CONSTITUTIONAL AS APPLIED TO THE
      INTRASTATE PRODUCTION OF CHILD PORNOGRAPHY.

      Croxford argues that the statute in question is unconstitutional as applied to

him. The Supreme Court analysis in Gonzales v. Raich controls our analysis of

Croxford’s as-applied challenge to § 2251(a). Because § 2251(a) is a facially

proper exercise of Congress’s Commerce Clause power and Croxford’s conduct

falls within the regulated class, any as-applied challenge to the statute based on

arguments that his conduct was not sufficiently commercial or did not implicate

interstate commerce because the depictions never crossed state lines, must

necessarily fail. Raich makes clear that the Commerce Clause grants Congress

the power to regulate an entire class of activities that substantially affects

interstate commerce, even if the commercial effect of an individual instance

within the class is slight. Here, Croxford sexually exploited a nine-year-old girl

in his custody, and such exploitation is within the bounds of what Congress



                                         -24-
intended to proscribe by its enactment of § 2251(a).

      The conduct in United States v. Jeronimo-Bautista, 425 F.3d 1266, where

we rejected an as-applied challenge to § 2251(a), was arguably more localized

with less evidence of intent to distribute or sell than the facts currently before us.

In Jeronimo-Bautista, the defendant, with two other men, entered a vacant

residence with a 13-year old girl, and after the girl became unconscious, removed

her clothing, sexually assaulted her, and took photographs of their actions. See

id. at 1268. We held that Congress’ decision, that the defendant’s local

production of child pornography is illegal conduct, represents a “rational

determination that such local activities constitute an essential part of the interstate

market for child pornography that is well within Congress’ power to regulate.”

Id. at 1273. We found, relying on Raich, that “the intrastate production of child

pornography could, in the aggregate, have a substantial effect on the interstate

market for such materials.” Id. at 1272-73. The photographs in Jeronimo-

Bautista were not disseminated, nor were they stored or transmitted electronically

via the Internet, the United States Postal Service, or any other method crossing

state lines or internationally.   See id. at 1268. Here, images were stored on

computer diskettes, and were downloaded on a computer, and Croxford had easy

access of dissemination as an Internet provider. Croxford’s as-applied challenge

is weaker than that in Jeronimo-Bautista, and in accordance with that decision,

Croxford’s as-applied challenge necessarily fails.


                                          -25-
      Croxford cites to two circuit courts and some district courts that have

reached the conclusion that § 2251(a) is unconstitutional as applied to the

defendants before them. See McCoy v. United States, 323 F.3d 1114, 1132 (9th

Cir. 2003); United States v. Corp., 236 F.3d 325, 332 (6th Cir. 2001); United

States v. Jeronimo-Bautista, 319 F. Supp. 2d 1272, 1282 (D. Utah 2004) 6; United

States v. Matthews, 300 F. Supp. 2d 1220, 1237 (N.D. Ala. 2004). In United

States v. Morales-de Jesus, the First Circuit articulated two situations where child

pornography as-applied challenges may arise. See 372 F.3d at 17-19 (2004).

First, as-applied challenges may arise when a defendant argues that his conduct

does not impact commerce because the perpetrator does not intend to sell or

distribute the visual depiction. See id. at 18. This argument fails, because

Congress’ power to prohibit this conduct does not rely on the economic facts of a

single case, but instead relies on its power to control an entire class of conduct.

See id.

      The First Circuit acknowledged that as-applied challenges may also arise

that “focus on facts other than the economic facts of the particular case. These

facts could include the age of the minor, the relationship between the defendant

and the minor, the nature of the allegedly sexually explicit conduct, and the

nature of the visual depiction of that conduct.” See id. The district court



      6
        We reversed and remanded United States v. Jeronimo-Bautista, 319 F. Supp. 2d
1272 in United States v. Jeronimo-Bautista, 425 F.3d 1266.

                                         -26-
accepted this rationale, explaining that, when the conduct involved nude pictures

of a mother and daughter or an almost eighteen-year-old victim who consented to

the activity, the statute might become unconstitutional as applied. See Order

Denying Motion to Dismiss at 15. See also United States v. McCoy, 323 F.3d at

1132; United States v. Corp., 236 F.3d at 332. We need not decide whether the

particular facts of a case could ever give rise to an as-applied challenge. Rather,

we need only determine whether this rationale supports an as-applied challenge to

this case’s facts. Here, Croxford intentionally exploited two young children while

he had custody over them. He had the means, as an Internet provider, to

distribute the pictures. He also had thousands of images of child pornography on

his computer. Thus, the child pornography statute is a proper exercise of

Congress’ Commerce Clause authority, and the district court did not

unconstitutionally apply it to Croxford’s conduct.

III.   THE DISTRICT COURT’S SENTENCE DID NOT VIOLATE
       BOOKER.

       In Blakely, the Supreme Court held that the Sixth Amendment, in a state

prosecution, “requires that the maximum permissible sentence in a particular case

must be determined solely by reference to ‘facts reflected in the jury verdict or

admitted by the defendant.’” United States v. Wilson, 416 F.3d 1164, 1171 (10th

Cir. 2005)(quoting Blakely v. Washington, 542 U.S. at 302). In Booker, the

Court extended the Blakely reasoning to the Federal Sentencing Guidelines,



                                         -27-
“holding that the Sixth Amendment requires that ‘any fact (other than a prior

conviction) . . . necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond a reasonable doubt.’” Id.

(quoting United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005)). “[T]he

Court [in Booker] severed the provision of the Sentencing Reform Act making

application of the Guidelines mandatory.” United States v. Wilson, 416 F.3d at

1171 (citation omitted).

      In cases where sentencing occurred before Booker, we have recognized two

sentencing errors: (i) constitutional Booker error occurs when the district court

relies on “judge-found facts, other than those of prior convictions, to enhance a

defendant’s sentence mandatorily;” and (ii) non-constitutional Booker error

occurs where the district court applies “the Guidelines in a mandatory fashion,

even though the resulting sentence was calculated solely upon facts that were

admitted by the defendant, found by the jury, or based upon the fact of a prior

conviction.” Id. at 1171-72 (quoting United States v. Gonzalez-Huerta, 403 F.3d

727, 731-32 (10th Cir. 2005)). The district court committed neither constitutional

nor non-constitutional Booker error. The court did not enhance the sentence in a

mandatory fashion, but rather applied the Guidelines in an advisory manner. The

sentencing issue Croxford raises is what has become the “garden variety”

assertion we are frequently seeing -- that the district court violated his


                                          -28-
constitutional right by enhancing his sentence based on judicially-found facts to

which he has not pled guilty and which were not charged in the indictment. By

applying our post-Booker jurisprudence, we conclude that no constitutional error

occurred here. The district court anticipated the holding in Booker and did not

apply the Guidelines in a mandatory fashion, but rather, only applied the

Guidelines in an advisory fashion. Croxford stipulated in his plea agreement that

sometime before November 2002 he took sexually explicit photographs of his

adopted daughter with his digital camera, that he used a computer, and that he

used materials transported in interstate commerce when creating these images.

      Booker directs a court to consider the factors laid out in § 3553(a),

including the now-advisory guideline ranges, when determining the sentence. See

Booker, 125 S. Ct. at 757. Though the district court did not specifically refer to

18 U.S.C. § 3553(a) in determining Croxford’s sentence, it considered many of

the factors listed under the statute as well as the Guidelines and the district court

sentenced Croxford to a sentence within the Guideline range. See United States

v. Kelley, 359 F.3d 1302, 1305 (10th Cir. 2004)(“[W]e have made it quite clear

that the sentencing court is not required to consider individually each factor listed

in § 3553(a) before issuing a sentence.”)(citations omitted).

      The district court did not sentence Croxford in violation of the Fifth and

Sixth Amendment, and Croxford’s sentence is constitutional under Blakely and

under Booker.


                                          -29-
                                CONCLUSION

      Accordingly, for the reasons stated above, we affirm the district court’s

order of dismissal and the defendant’s sentence.



                                              Entered for the Court


                                              James O. Browning
                                              District Judge




                                       -30-
