United States v. Joubert

United States Court of Appeals
For the First Circuit

No. 14-1259

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT JOUBERT,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Torruella, Howard, and Kayatta,
Circuit Judges.

Judith H. Mizner, Assistant Federal Public Defender, for
appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
John P. Kacavas, United States Attorney, was on brief, for
appellee.

February 11, 2015
 KAYATTA, Circuit Judge. Robert Joubert was convicted of

three counts of sexual exploitation of children, in violation of 18

U.S.C. § 2251(a), and one count of possession of child pornography,

in violation of 18 U.S.C. § 2252A(a)(5)(B). On appeal, Joubert

raises four issues: (1) the search warrant failed to supply a nexus

to the place being searched; (2) the district court abused its

discretion in admitting testimony of uncharged child molestation;

(3) the Commerce Clause cannot support application to him of the

federal criminal statutes under which he was indicted; and (4) his

480-month sentence was substantively unreasonable. We affirm his

conviction and sentence in all respects.

I. Background

A. Investigation and Search1

In March 2012, a mother in Concord, New Hampshire, e-

mailed York, Maine, police to complain about Joubert, a baseball

coach working in the area. Joubert used to coach and mentor the

woman's son, KC. She called Joubert a pedophile, and said that New

Hampshire police previously investigated him multiple times for

similar allegations.

Over the course of the next four months, an investigation

by local police and the Federal Bureau of Investigation ("FBI")

turned up a series of reports and complaints that Joubert molested

1
The affidavit supporting the search warrant application
outlines the following details from the investigation.

-2-
or harassed various children, including the complainant.

Authorities proceeded to interview many of the alleged victims, as

well as their parents. They learned that Joubert engaged in a

pattern of abuse, usually gaining trust within a victim's family,

and then proceeding to exploit that position of trust. Law

enforcement officials also learned that Joubert often photographed

and videotaped his young charges. During the investigation,

Joubert himself contacted police. Police and FBI interviewed him

in late March, asking questions about his background, baseball

pedigree, and previous employment. According to the affidavit,

Joubert was "evasive" and "at times confrontational."

Starting in June 2012, the FBI and York police worked

with SJ, Joubert's 36-year-old non-biological son, who claimed that

Joubert molested him on two occasions in the mid-1980's. SJ

reported that Joubert lived at Joubert's parents' home, in

Manchester, New Hampshire. In late May or early June, SJ helped

Joubert move to that address. SJ also reported that, upon learning

of the investigation, Joubert became "anxious" and "very concerned"

about destroying his computer's hard drive. Joubert told SJ that

he was concerned about protecting "client" information. While in

SJ's presence, "Joubert tore apart the computer tower." He removed

components, threw away the computer tower, and then stacked the

removed components inside his parents' home. SJ did not see

Joubert discard the computer components.

-3-
 In late June 2012, police applied for a warrant to search

Joubert's parents' home. The warrant application sought permission

to search for several categories of evidence including: "[a]ny and

all computers or related storage devices and media"; "[a]ny and all

cameras . . . including cassette tapes, VCR/VHS tapes"; and "[a]ny

and all photographs, electronic images, and videos of minors/

juveniles/ youth/ youth groups that Robert Joubert has or may have

had contact with." Appended to the application was a 14-page

affidavit, detailing the joint FBI-police investigation into

Joubert.

The affidavit chronicled the numerous complaints against

Joubert, the reports of his photographing and videotaping youths,

and the information conveyed by SJ, described above. In the final

paragraphs of the affidavit, the officer-affiant stated that,

"[b]ased on [his] training and experience, and supported by the

actions of the suspect in this investigation, [he knows] that

persons engaged in the molestation and exploitation of . . . minors

often maintain possession and/or control of physical or electronic

documents pertaining to their victims and other juveniles." The

officer-affiant went on to state:

I believe that evidence of the crime(s) of
Felonious Sexual Assault exists. I believe
the aforementioned evidence exists in the
possession, control, care and/or custody of
Robert Joubert. I believe that the evidence
exists in the form of, but not limited to;
physical and electronic documents and other
property. The evidence may confirm or dispel

-4-
 Robert Joubert's background (employment,
resume claims, sport/coaching qualification
and credentials), the allegation made against
him involving juveniles, his travels, his
relationship(s) with minors/juveniles and the
victims mentioned in this affidavit, confirm
his relationship with already identified
victims, and identify other potential (yet
unknown) victims.

Based on the affidavit, a New Hampshire judge issued a warrant to

search Joubert's parents' home for "evidence of the crime(s) of

Aggravated Felonious Sexual Assault . . . and other Sexual

crimes[.]" On June 28, 2012, police executed that search, seizing

photographs, a laptop computer, computer drives, and VHS tapes,

among other items. Of the items seized, most incriminating was a

pornographic VHS recording of KC and Joubert.

B. Charged Conduct

Joubert coached KC's baseball team in Summer 2002, when

KC was 9 or 10 years old. After the season ended Joubert sought to

maintain a "big brother"-type relationship with KC. Joubert

eventually moved into KC's home, where KC lived with his single

mother. According to KC's mother, Joubert frequently videotaped

her kids. After some time, Joubert started coercing KC into

performing sexual favors in exchange for food or new sports

equipment. Joubert became "obsessive with [KC]" and KC's mother

ultimately kicked Joubert out in the summer of 2004. The seized

VHS tape contained segments where Joubert places KC's hand on

Joubert's penis.

-5-
 On the basis of Joubert's possessing and producing a VHS

tape containing child pornography, a grand jury indicted Joubert on

three counts of sexual exploitation of a child to produce a visual

depiction, in violation of 18 U.S.C. § 2251(a), and one count of

possession of child pornography, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). Specifically, the indictment charged that on two

unknown dates, between November 2002 and April 2003, and between

September and August 2004, Joubert coerced KC to engage in sexually

explicit conduct for the purpose of making "visual depiction[s] of

such conduct, to wit, a video depicting masturbation." The

indictment also charged that on an unknown date between November

2002 and April 2003, Joubert coerced KC to engage in sexually

explicit conduct for the purpose of making "a visual depiction of

such conduct, to wit, a video recording depicting a lewd or

lascivious exhibition of [KC's] genital or pubic area."

C. Trial and Sentencing

During pre-trial, Joubert moved to suppress items seized

pursuant to the search warrant--including the VHS tape--arguing

that the affidavit did not supply a sufficient nexus between the

alleged crimes and the location being searched. The district court

denied his motion. At trial, and over objection, the court

admitted uncharged sexual misconduct testimony from SJ and two

other victims, MT and NT. KC also testified during trial,

identifying himself and Joubert in the illicit VHS recording.

-6-
After a three-day trial, Joubert was found guilty. The pre-

sentence investigation report's Guidelines sentence was 960 months.

The government recommended a 540-month sentence, but the district

court varied further downward, sentencing Joubert to 480 months in

prison.

II. Analysis

A. The Constitutionality of the Search Warrant

The Fourth Amendment to the United States Constitution

provides that "[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall issue,

but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the persons

or things to be seized." U.S. Const. amend. IV. Prior to executing

a search, police officers, with some exceptions, must obtain a

search warrant supported by probable cause to believe that (1) a

crime has been committed, and (2) that "enumerated evidence of the

[crime] will be found at the place to be searched--the so-called

'nexus' element." United States v. Hicks, 575 F.3d 130, 136 (1st

Cir. 2009).

Joubert challenges the district court's finding that the

affidavit established probable cause to search his parents' house.

When evaluating the nexus between the object and the location of

the search, "a magistrate [judge] has to make a practical, common-

-7-
sense decision whether, given all the circumstances set forth in

the affidavit before him, . . . there is a fair probability that

contraband or evidence of a crime will be found in a particular

place." United States v. Rodrigue, 560 F.3d 29, 33 (1st Cir. 2009)

(citations and internal quotation marks omitted). "[T]he

application must give someone of reasonable caution reason to

believe that evidence of a crime will be found at the place to be

searched." Id. (citations and internal quotation marks omitted).

The government does not need to show that the belief is

"necessarily correct or more likely true than false." United

States v. Lyons, 740 F.3d 702, 723 (1st Cir. 2014) (quoting United

States v. Feliz, 182 F.3d 82, 87 (1st Cir. 1999)); see also

Spinelli v. United States, 393 U.S. 410, 419 (1969). Nexus "can be

inferred from the type of crime, the nature of the items sought,

the extent of an opportunity for concealment[,] and normal

inferences as to where a criminal would hide [evidence of a

crime.]" United States v. Charest, 602 F.2d 1015, 1017 (1st Cir.

1979). The reviewing court's duty is "simply to ensure that the

magistrate had a substantial basis for concluding that probable

cause existed." Illinois v. Gates, 462 U.S. 213, 238 (1983);

Lyons, 740 F.3d at 723. And in making this inquiry, we focus on

the facts and supported opinions in the affidavit, ignoring

"unsupported conclusions." United States v. Vigeant, 176 F.3d 565,

571 (1st Cir. 1999) (citing Gates, 462 U.S. at 239).

-8-
 Joubert rests his nexus challenge on four contentions.

We address each contention in turn.

First, Joubert argues that a nexus is lacking because the

affidavit contains no allegations that he committed any offenses at

the location being searched. But Joubert misidentifies the

relevant inquiry. The question is whether evidence of the crime is

likely to be found in the specific place being searched, not

whether the crime occurred there. See Zurcher v. Stanford Daily,

436 U.S. 547, 556-57 (1978); Feliz, 182 F.3d at 86–88 (1st Cir.

1999); see also United States v. Kapordelis, 569 F.3d 1291, 1310

(11th Cir. 2009) ("There need not be an allegation that the illegal

activity occurred at the location to be searched, for example the

home"). As we explain below in rejecting Joubert's third argument,

there was indeed such a likelihood.

Second, Joubert argues that there is no reason to believe

that he would have preserved the photos and videos discussed in the

affidavit. But photos and videos, by their very nature, are items

customarily created for preservation. See United States v.

Beckett, 321 F.3d 26, 32 (1st Cir. 2003) (noting that the fact that

a notebook can "reasonably be viewed as [an] item[] created for

preservation" supports the possibility that it would have been

retained over the years). As such, allegations regarding

photographic or video recordings do not suffer from the staleness

problems that sometimes arise in other contexts. Cf. United States

-9-
v. Brooks, 594 F.3d 488, 493 (6th Cir. 2010) ("In the context of

drug crimes, information goes stale very quickly because drugs are

usually sold and consumed in a prompt fashion.") (internal

quotation marks omitted). The nature of the items sought here

supports a common-sense inference that the items would endure among

Joubert's belongings. See Beckett, 321 F.3d at 32.

Third, Joubert claims that there is no reason to think he

would have kept the photos at his parents' home. But the affidavit

indicated that Joubert lived there, and as the Eleventh Circuit has

explained:

The justification for allowing a search of a
person's residence when that person is
suspected of criminal activity is the common-
sense realization that one tends to conceal
fruits and instrumentalities of a crime in a
place to which easy access may be had and in
which privacy is nevertheless maintained. In
normal situations, few places are more
convenient than one's residence for use in
planning criminal activities and hiding fruits
of a crime.

Kapordelis, 569 F.3d at 1310 (quoting United States v. Green, 634

F.2d 222, 226 (5th Cir. Unit B 1981)). In addition, the affidavit

indicated that SJ recently helped Joubert move his belongings to

that address and that Joubert, upon learning of the investigation,

became very anxious and sought SJ's help in wiping or destroying

his hard drive. While at Joubert's parents' home, SJ saw Joubert

"[tear] apart the computer tower," removing components; SJ did not

see Joubert dispose of the removed computer components. With this

-10-
information, the magistrate judge had a substantial basis for "a

practical, common-sense decision," Rodrigue, 560 F.3d at 33, that

evidence of child molestation would likely be found at that

address.

Finally, Joubert argues that there is no reason to

suspect he had any inappropriate photos because the affidavit

lacked any allegations concerning child pornography or

photographing sexual contacts. The affidavit's only photographing

allegations are of photographing at athletic events, at the beach,

or similar settings. This argument misses the mark completely. To

start with, this argument is not a challenge to the nexus with the

location, but rather a challenge to the specification of an object

of the search.

Even allowed as such, the argument fails because

photographs of any type of any of the suspected victims would

provide evidence of the crimes specified. Even otherwise innocuous

pictures of Joubert and his accusers would be relevant (albeit

insufficient) evidence for building a case that the alleged abuse

actually occurred because such pictures would preclude the

possibility that Joubert never knew nor was in contact with the

accusers. See Fed. R. Evid. 401 ("Evidence is relevant if: (a) it

has any tendency to make a fact more or less probable than it would

be without the evidence; and (b) the fact is of consequence in

-11-
determining the action."). It therefore does not matter that the

affidavit contained no allegations of child pornography.2

B. Uncharged Child Molestation Evidence

At trial, the district court admitted, over objection,

testimony from three other victims, MT, NT, and SJ. Joubert argues

that, notwithstanding Federal Rule of Evidence 414, the district

court erred, under Federal Rule of Evidence 403, by admitting this

uncharged child molestation testimony. He contends that the

testimony was unfairly prejudicial, that it "invite[d] the jury to

render a verdict on an improper emotional basis." United States v.

Varoudakis, 233 F.3d 113, 122 (1st Cir. 2000). Where, as here, an

evidentiary objection is preserved, we review the district court's

decision for abuse of discretion, "reversing if we are 'left with

a definite and firm conviction that the court made a clear error of

judgment.'" United States v. Burdulis, 753 F.3d 255, 263 (1st Cir.

2014) (quoting United States v. Trenkler, 61 F.3d 45, 57 (1st Cir.

1995)). An appellate court gives "great deference" to a district

court's balancing of probative value versus unfair prejudice.

United States v. Breton, 740 F.3d 1, 14 (1st Cir. 2014).

Ordinarily, the Federal Rules of Evidence prohibit using

a person's prior acts "to prove a person's character in order to

2
Finding the search warrant affidavit sufficient, we
necessarily reject Joubert's second argument, that the affidavit
was so patently lacking in probable cause that it cannot fall
within the "good faith" exception of United States v. Leon, 468
U.S. 897 (1984).

-12-
show that on a particular occasion the person acted in accordance

with the character." Fed. R. Evid. 404(b)(1); see also United

States v. Gonyer, 761 F.3d 157, 162 (1st Cir. 2014). "The rule

prohibits the prosecution from introducing evidence that is

extrinsic to the crime charged solely for the purpose of showing

villainous propensity." Gonyer, 761 F.3d at 162 (internal

quotation marks omitted). Rule 414 provides an exception to this

general rule in child molestation cases. See Martínez v. Cui, 608

F.3d 54, 59 (1st Cir. 2010) (applying Rule 415, Rule 414's

counterpart for civil cases); see also United States v. Davis, 624

F.3d 508, 511–12 (2d Cir. 2010); United States v. Rogers, 587 F.3d

816, 822 (7th Cir. 2009) ("Congress has said that . . . it is not

improper to draw the inference that the defendant committed this

sexual offense because he has the propensity to do so.").

Rule 414 provides that "[i]n a criminal case in which a

defendant is accused of child molestation, the court may admit

evidence that the defendant committed any other child molestation.

The evidence may be considered on any matter to which it is

relevant." This Rule 414 evidence remains subject to Rule 403's

balancing between probative value and unfair prejudice. United

States v. Jones, 748 F.3d 64, 70 (1st Cir. 2014); see generally

Fed. R. Evid. 403 ("The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or

more of the following: unfair prejudice, confusing the issues,

-13-
misleading the jury, undue delay, wasting time, or needlessly

presenting cumulative evidence."). District courts are to apply

Rule 403 to Rule 414 evidence with a recognition that Rule 414

"reflects a congressional judgment to remove the propensity bar to

admissibility of certain evidence." Cui, 608 F.3d at 59.

Joubert argues that the uncharged child molestation

testimony's prejudicial effect outweighed its probative value for

three reasons: (1) the allegations are old,3 and thus not

particularly probative; (2) the evidence was of limited probative

value in light of the central contested issue at trial; and (3) the

uncharged molestation testimony overshadowed the evidence of

charged conduct, overwhelming the jury and resulting in unfair

prejudice to Joubert.

First, the age of MT, NT, and SJ's allegations does not

necessarily mean that the district court abused its discretion in

admitting the evidence. Other courts have admitted testimony from

decades earlier where that testimony showed that the defendant

sought a similar type of sexual gratification. See, e.g., Davis,

624 F.3d at 512 (admitting evidence of a child molestation that

occurred 19 years prior). In the context of the evidence here, the

3
The abuse against MT allegedly occurred 6–9 years prior to
the charged conduct. The abuse against NT allegedly occurred about
10 years prior to the charged conduct. The abuse against SJ
allegedly occurred about 18–20 years prior to the charged conduct.

-14-
age of the allegations alone is insufficient to prove the district

court abused its discretion.

Second, because Joubert's defense was that he did not

commit the crimes against KC, evidence bearing on KC's veracity was

probative to determining whether Joubert indeed produced and

possessed the illicit recording. The uncharged child molestation

testimony was probative of KC's veracity because it corroborated

aspects of KC's testimony, particularly the nature of the abuse and

Joubert's modus operandi in approaching his victims. Given these

corroborating aspects of the witnesses' testimony, the district

court did not abuse its discretion under Rule 403 in finding that

the uncharged molestation testimony's probative value outweighed

any unfair prejudicial effect.

Third, although the district court's admission of

testimony from three other victims strikes us as potentially

cumulative, the district court is in much better position to make

such judgments. "[T]he balancing act called for by Rule 403 is a

quintessentially fact-sensitive enterprise, and the trial judge is

in the best position to make such factbound assessments." United

States v. Vizcarrondo-Casanova, 763 F.3d 89, 94 (1st Cir. 2014)

(quoting United States v. Martin, 695 F.3d 159, 165 (1st Cir.

2012)). The district court's decision here is far from "the type

of 'exceptional circumstance' that calls for reversal based on such

-15-
an evidentiary ruling." Id. (quoting United States v. Houle, 237

F.3d 71, 77 (1st Cir. 2001)).4

To be sure, the testimony was very prejudicial. But in

light of Rule 414, we cannot say it was unfairly so. See United

States v. Morales-Aldahondo, 524 F.3d 115, 120 (1st Cir. 2008)

(noting that "[i]n balancing the scales of Rule 403, it is

important to note that only unfair prejudice is to be avoided, as

by design, all evidence is meant to be prejudicial") (internal

quotation marks omitted).

C. Jurisdiction

Joubert preserves for Supreme Court review an argument

that the VHS tape made out-of-state--the sole connection to

interstate commerce--is insufficient to support application to him

of the federal criminal statutes under which he was indicted. The

federal prohibition on child pornography applies broadly to any

person who:

knowingly possesses, or knowingly accesses
with intent to view, any book, magazine,
periodical, film, videotape, computer disk, or
any other material that contains an image of
child pornography that has been mailed, or
shipped or transported using any means or
facility of interstate or foreign commerce or

4
Joubert also argues that the district court erred by
admitting testimony from his son, SJ, which he contends was
particularly prejudicial. For the same reasons already mentioned,
we do not think the unfair prejudice, if any, outweighed the
probative value of SJ's testimony of uncharged child molestation.
Joubert, therefore, has not demonstrated that the district court
abused its discretion.

-16-
 in or affecting interstate or foreign commerce
by any means, including by computer or that
was produced using materials that have been
mailed, or shipped or transported or in or
affecting interstate or foreign commerce by
any means, including by computer . . . .

18 U.S.C. § 2252A(a)(5)(B). We give de novo review to

constitutional challenges to a federal statute. United States v.

Rene E., 583 F.3d 8, 11 (1st Cir. 2009).

This court recently held that the interstate commerce

element is satisfied by the copying of child pornography onto a

thumb drive that had traveled interstate. See United States v.

Burdulis, 753 F.3d 255, 262 (1st Cir. 2014), cert. denied, 135 S.

Ct. 467 (2014). Most circuits to consider the question have come

to the same conclusion. See United States v. Dickson, 632 F.3d

186, 189–90 (5th Cir. 2011); accord United States v. Caley, 355 F.

App'x 760, 761 (4th Cir. 2009); United States v. Maxwell, 446 F.3d

1210, 1219 (11th Cir. 2006); United States v. Angle, 234 F.3d 326,

341 (7th Cir. 2000); United States v. Lacy, 119 F.3d 742, 750 (9th

Cir. 1997). Indeed, Joubert correctly conceded at oral argument

that we would have to overturn our decision in Burdulis to rule in

his favor on this issue. No relevant distinction suggests that a

VHS tape as employed here provides less of a nexus to interstate

commerce than the thumb drive in Burdulis. We therefore find the

rejection of Joubert's challenge prescribed by our earlier decision

in Burdulis. See United States v. Wogan, 938 F.2d 1446, 1449 (1st

Cir. 1991) ("[P]rior panel decisions are binding upon newly

-17-
constituted panels in the absence of supervening authority

sufficient to warrant disregard of established precedent.").

D. 480-Month Sentence

Finally, Joubert challenges the substantive

reasonableness of his 480-month sentence. We review the

substantive reasonableness of a sentence for an abuse of

discretion. United States v. King, 741 F.3d 305, 307-08 (1st Cir.

2014). "[T]he linchpin of a reasonable sentence is a plausible

sentencing rationale and a defensible result." United States v.

Martin, 520 F.3d 87, 96 (1st Cir. 2008). "We remember that there

is no single reasonable sentence in a particular case but, rather,

a universe of reasonable outcomes." United States v. Batchu, 724

F.3d 1, 13 (1st Cir. 2013) (internal quotation marks omitted).

"When, as in this case, a district court essays a substantial

downward variance from a properly calculated guideline sentencing

range, a defendant's claim of substantive unreasonableness will

generally fail." United States v. Floyd, 740 F.3d 22, 39–40 (1st

Cir. 2014).

In making this challenge, Joubert argues several points:

(1) that the district court gave short shrift to mitigating

factors; (2) that his sentence is statistically longer than the

national average; and (3) that a 480-month sentence is an effective

life term for 60-year-old Joubert, and thus is too harsh.

-18-
 Joubert points to several mitigating factors that he

thinks the district court underappreciated: his advanced age, his

obligations to elderly parents, the non-violent nature of his

recordings, and the fact that he never distributed the illicit

recordings. But the district court did explicitly consider such

factors. It weighed Joubert's mitigating factors against his

aggravating factors, including that he repeatedly, over the course

of decades, used his coaching positions to sexually abuse minors.

"That the sentencing court chose not to attach to certain of the

mitigating factors the significance that the appellant thinks they

deserved does not make the sentence unreasonable." United States

v. Clogston, 662 F.3d 588, 593 (1st Cir. 2011). The significance

given to each relevant factor is for the district court, not an

appellate court, to decide. United States v. Dixon, 449 F.3d 194,

205 (1st Cir. 2006).

Even if sex offenders have, on average, shorter sentences

than Joubert, that tells us little about the substantive

reasonableness of Joubert's sentence. "A well-founded claim of

disparity . . . assumes that apples are being compared to apples."

United States v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).

By pointing to national statistics, Joubert compares the sentence

for his unique offense to the average sentence for others convicted

under the same federal statute. A range of conduct is covered

under criminal statutes like 18 U.S.C. §§ 2251(a), 2252A(a)(5)(B).

-19-
This comparison is thus unhelpful for determining the substantive

reasonableness of Joubert's sentence for his unique crime. See

Dixon, 449 F.3d at 205 (noting that "sentencing determinations

hinge primarily on case-specific and defendant-specific

considerations"). Moreover, Joubert is far from alone in receiving

a lengthy sentence for similar conduct. See, e.g., United States

v. Klug, 670 F.3d 797, 800 (7th Cir. 2012) (holding that a 384-

month sentence for producing child pornography depicting "children

dressing and undressing" was reasonable).

Finally, the fact that a 480-month sentence is just as

much a life term for 60-year-old Joubert as a 960-month sentence

does nothing to establish that Joubert's 480-month sentence was

substantively unreasonable. The sentencing of a defendant involves

more considerations than simply the effect of that sentence on the

defendant. See 18 U.S.C. § 3553(a)(2). The district court may

consider the perception and effect that the punishment may have on

the general public, even if for the defendant, the practical effect

is minimal or non-existent. See, e.g., United States v. Politano,

522 F.3d 69, 74 (1st Cir. 2008). Noting the "compulsive" nature of

Joubert's behavior, the district court purposefully fashioned the

sentence so that Joubert would never again have contact with young

boys. That certainly is a plausible rationale for a defensible

result. See Martin, 520 F.3d at 96. We thus find that the

-20-
district court did not abuse its discretion in sentencing Joubert

to 480 months.

III. Conclusion

For the aforementioned reasons, we affirm.

- Concurring Opinion Follows -

-21-
 TORRUELLA, Circuit Judge (Concurring). I join the

court's opinion in full but write separately to note my

disagreement with the state of our Commerce Clause jurisprudence.

It seems counterintuitive that interstate commerce is

affected when Joubert purchases a VHS videotape in New Hampshire,

records on the VHS videotape in New Hampshire, and neither sells

nor attempts to sell the VHS videotape outside of New Hampshire.

Indeed, the only argument in support of a connection to interstate

commerce is that, in aggregate, this type of behavior has an effect

on interstate commerce. This borders on the farcical, as the

evidence suggests that the content of the videotape was made

exclusively for Joubert's own personal use. Any commonsense

understanding of "interstate commerce" excludes the conduct at

issue here.

Yet, as the court correctly notes, and Joubert himself

concedes, this court and most (if not all) of the other circuits

have found this connection perfectly acceptable, and thus

constitutional. See ante, at 17 (collecting cases from other

circuits). This "link" to interstate commerce, which is tenuous at

best, also effectively gives the federal government unlimited

jurisdiction, since there is very little in today's society that,

when aggregated, would have no impact on interstate commerce. We

have put aside common sense in order to federalize conduct which we

believe needs to be punished.

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 Let there be no doubt: I am in full agreement that the

behavior Joubert was convicted of must be punished, and punished

harshly. This punishment, however, should be meted out by the

state under its plenary police power, and not by the federal

government with its limited jurisdictional reach.5 See United

States v. López, 514 U.S. 549, 552 (1995) ("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." (quoting The Federalist No. 45, at 292-93

(James Madison) (Clinton Rossiter ed., 1961))).

Recent Supreme Court cases suggest a push in this

direction. See, e.g., Nat'l Fed'n of Indep. Bus. v. Sebelius, 132

S. Ct. 2566, 2591 (2012) ("Although the [Commerce] Clause gives

Congress authority to legislate . . . , it does not license the

exercise of any great substantive and independent power[s] beyond

those specifically enumerated. Instead, the Clause is merely a

declaration . . . that the means of carrying into execution those

[powers] otherwise granted are included in the grant." (second and

third alterations in the original) (internal citations and

quotation marks omitted)); United States v. Morrison, 529 U.S. 598,

5
This is not a situation where if the federal government did
not have jurisdiction, the crime would go unpunished. The
investigation began with police in York, Maine, and it continued as
a joint state/federal task force. I have little doubt that had the
FBI not been involved and had not brought these federal charges,
state prosecutors would have brought charges.

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617-18 (2000) ("We accordingly reject the argument that Congress

may regulate noneconomic, violent criminal conduct based solely on

that conduct's aggregate effect on interstate commerce. The

Constitution requires a distinction between what is truly national

and what is truly local."); López, 514 U.S. at 567 ("Respondent was

a local student at a local school; there is no indication that he

had recently moved in interstate commerce, and there is no

requirement that his possession of the firearm have any concrete

tie to interstate commerce."). Given this trend of narrowing the

reach of the Commerce Clause, I believe this court should

reevaluate its precedents and lead the return to a more faithful

reading of the term "interstate commerce."

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