[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-16336 ELEVENTH CIRCUIT
SEPTEMBER 23, 2009
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00071-CR-4-SPM-WCS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHARLES S. FARIS, III,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(September 23, 2009)
Before MARCUS, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Charles S. Faris, III, met an undercover Tallahassee Police Department
investigator who posed as “Stephanie,” the mother of two fictitious minor girls, in
an internet chatroom called “Open Minded Parents.” Faris identified himself as a
fifty-three year old man from Tallahassee, Florida. In their first chat, he stated his
interest in, among other things, young girls and boys. Stephanie responded that
she loved her daughters and that she liked watching.
In their second chat, Faris asked Stephanie detailed sexual questions about
her daughters. He later arranged by telephone to personally meet Stephanie and
her daughters. Stephanie provided him with an address, and, when he arrived, he
was arrested.
Faris’ apartment was lawfully searched on the day following his arrest,
resulting in the seizure of a computer containing 20–30 images of minors engaged
in sexual activity. Faris was subsequently charged with violating 18 U.S.C.
§ 2252A(a)(5)(B), which prohibits possessing child pornography that has been
transported in interstate or foreign commerce; and 18 U.S.C. § 2422(b), which
prohibits using a facility of interstate commerce to entice a minor to engage in
sexual activity. He pleaded guilty to violating 18 U.S.C. § 2252A(a)(5)(B) and
was convicted after a jury trial of violating 18 U.S.C. § 2422(b).
Faris appeals both his conviction under 18 U.S.C. § 2422(b) and his 292-
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month sentence. He argues that the district court erred by denying his motion for
judgment of acquittal and by applying a two-level “undue influence” enhancement
under U.S. Sentencing Guideline § 2G1.3(b)(2)(B). For the reasons that follow,
we affirm both his conviction and sentence.
I. CONVICTION
Faris argues that 18 U.S.C. § 2422(b), as applied here, violates both the
Commerce Clause and the Necessary and Proper Clause of the U.S. Constitution.
Section 2422(b) prohibits using any means of interstate commerce to knowingly
persuade, induce, entice, or coerce a minor to engage in “any sexual activity for
which any person can be charged with a criminal offense . . . .” 18 U.S.C.
§ 2422(b). We address Faris’ arguments in turn, applying de novo review. See
United States v. Reynolds, 215 F.3d 1210, 1212 (11th Cir. 2000) (per curiam)
(“We review the constitutionality of statutes de novo.”)
A. Commerce Clause
Faris concedes that his internet communications were routed through
Virginia. Nonetheless, he argues that the statute, as applied here, violates the
Commerce Clause because his internet communications, telephone calls, e-mails,
and travel routes were confined within Florida state lines and did not otherwise
affect interstate commerce. This argument is meritless.
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The Commerce Clause provides Congress with the power “[t]o regulate
commerce . . . among the several states . . . .” U.S. Const. art. I, § 8, cl. 3. “The
Commerce Clause power is plenary.” United States v. Hornaday, 392 F.3d 1306,
1311 (11th Cir. 2004). It includes the power to regulate and protect the
“instrumentalities of interstate commerce,” even when the targeted “threat may
come only from intrastate activities.” United States v. Lopez, 514 U.S. 549, 558,
115 S. Ct. 1624, 1629 (1995). It also includes prohibiting the use of commercial
instrumentalities for harmful purposes even if the targeted harm “occurs outside
the flow of commerce” and “is purely local.” United States v. Ballinger, 395 F.3d
1218, 1226 (11th Cir. 2005) (en banc).
The internet is “an instrumentality of interstate commerce.” Hornaday, 392
F.3d at 1311. Congress “has the power to regulate the internet” and “to prohibit
its use for harmful or immoral purposes regardless of whether those purposes
would have a primarily intrastate impact.” Id. “Congress may reach and prohibit
the use of a telephone or the internet to set up the sexual abuse of children through
intermediaries . . . .” Id.
Faris’ Commerce Clause argument fails for two reasons. First, our
precedent forecloses it. We have held that 18 U.S.C. § 2422(b) does not exceed
Congress’ commerce power. Hornaday, 392 F.3d at 1310–11. Second, Faris’
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argument is inconsistent. He concedes that his internet communications crossed
state boundaries but asserts that Congress cannot regulate those interstate
communications. Even if none of Faris’ communications were routed over state
lines, the internet and telephone he used to contact the undercover officer were
still “instrumentalities of interstate commerce.” Lopez, 514 U.S. at 558, 115 S. Ct.
at 1629; Ballinger, 395 F.3d at 1226. Therefore, 18 U.S.C. § 2422(b) does not, as
applied here, violate the Commerce Clause.
B. Necessary and Proper Clause
Faris argues that it is inadequate to invoke the Necessary and Proper Clause
to confer authority for the prosecution against him. The Necessary and Proper
Clause states that “Congress shall have power . . . [t]o make all laws which shall
be necessary and proper for carrying into execution the foregoing powers . . . .”
U.S. Const. art. I, § 8, cl. 18. Faris asserts that it is not necessary and proper for
Congress to regulate every wholly intrastate activity that involves using a
telephone or computer since the Tenth Amendment delegates that responsibility to
the states. We disagree.
In a case involving the production and possession of child pornography,
“we h[e]ld that 18 U.S.C. § 2252A is a valid exercise of Congress’s authority
pursuant to the Necessary and Proper Clause to effectuate Congress’s power to
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regulate commerce among the several states.” United States v. Maxwell, 446 F.3d
1210, 1219 (11th Cir. 2006). In so holding, we affirmed the principle that
“Congress [has] substantial leeway to regulate purely intrastate activity (whether
economic or not) that it deems to have the capability, in the aggregate, of
frustrating the broader regulation of interstate economic activity.” Id. at 1215.
Faris’ use of the internet, an instrumentality of commerce, is sufficient to
satisfy 18 U.S.C. § 2422(b)’s interstate commerce element even if he did not use it
for economic purposes. Since Congress may prohibit the use of an instrumentality
of commerce for harmful purposes, Ballinger, 395 F.3d at 1226, the prosecution
against Faris is not inconsistent with the Necessary and Proper Clause. And
because § 2422(b) does not, as applied to Faris, violate either the Commerce
Clause or the Necessary and Proper Clause, the district court did not err by
denying his motion for judgment of acquittal.
II. SENTENCE
Faris argues that the district court erred by applying U.S. Sentencing
Guideline § 2G1.3(b)(2)(B)’s two-level enhancement. “We review a district
court’s application of the guidelines to the facts de novo and all factual findings
for clear error.” United States v. Kinard, 472 F.3d 1294, 1297 n.3 (11th Cir. 2006)
(per curiam) (citation omitted) (italics added).
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The guidelines provide a two-level sentence enhancement if “a participant .
. . unduly influenced a minor to engage in prohibited sexual conduct . . . .” U.S.
SENTENCING GUIDELINES MANUAL § 2G1.3(b)(2)(B). A “minor” can be “an
undercover law enforcement officer who represented to a participant that the
officer had not attained the age of 18 years.” Id. § 2G1.3 cmt. n.1(C). “In
determining whether subsection (b)(2)(B) applies, the court should closely
consider the facts of the case to determine whether a participant’s influence over
the minor compromised the voluntariness of the minor’s behavior.” Id. § 2G1.3
cmt. n.3(B).
Faris attempts to distinguish his case from United States v. Root, 296 F.3d
1222, 1233 (11th Cir. 2002), where we held that “an undercover officer playing
the role of a minor victim qualifies as a victim, thereby making an actual victim
unnecessary.” Faris argues that, unlike the defendant in Root, he communicated
only with an adult intermediary and not directly with the minor victims, and that
he did not use superior resources in doing so.
To be sure, Root involved a sentencing enhancement under §
2A3.2(b)(2)(B)(ii), not § 2G1.3(b)(2)(B)(ii). But both provisions, using identical
language, provide an enhancement when the defendant “unduly influenced the
minor to engage in prohibited sexual conduct . . . .” Compare U.S. SENTENCING
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GUIDELINES MANUAL § 2G1.3(b)(2)(B)(ii) with § 2G1.3(b)(2)(B)(ii). Thus, Root
applies here.
We have rejected the very argument that Faris raises to distinguish his case
from Root. In United States v. Murrell, 368 F.3d 1283 (11th Cir. 2004), the
defendant, like Faris, appealed his conviction under 18 U.S.C. § 2422(b). Id. at
1284. The defendant tried to distinguish Root by noting that he communicated
with an adult intermediary, not directly with a minor. See id. at 1287.
We found that distinction “[ir]relevant to the disposition of the charges . . .
.” Id. at 1286. “[N]ot[ing] that the efficacy of § 2422(b) would be eviscerated if a
defendant could circumvent the statute simply by employing an intermediary to
carry out his intended objective” and “find[ing] . . . direct communication with a
minor or supposed minor . . . unnecessary under the text of § 2422(b),” we held
that the defendant violated the statute. Id. at 1287–88. And “[b]ecause the
Sentencing Commission specifically provided that undercover officers are
‘victims’ for purposes of § 2G1.1, we deduce[d] that the enhancement is directed
at the defendant’s intent, rather than any actual harm caused to a genuine victim.”
Id. at 1289. Thus, we found “no difference between an undercover officer victim
and a fictitious victim” and “the enhancement appli[cable] whether the minor
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‘victim’ is real, fictitious, or an undercover officer.” Id. Murrell forecloses Faris’
distinction.
Similarly, our precedent forecloses Faris’ argument that he did not use
superior resources to communicate with the adult intermediary. Like the
defendant in United States v. Vance, 494 F.3d 985 (11th Cir. 2007), Faris “used
his knowledge of computers and the internet to contact [a person] whom he
believed would supply minors for sexual conduct.” Id. at 996. Faris notes that he
merely used his home computer to communicate with the intermediary. His
knowledge of computers and the internet, however, qualifies as a “superior
resource[].” See id. Accordingly, the district court did not err by applying §
2G1.3(b)(2)(B)’s two-level enhancement.
Finally, Faris suggests that we overrule Root en banc. He notes that two
other circuits have rejected our reasoning in Root. The Seventh Circuit criticized
Root by suggesting that the Root majority “ignored the clear language of the
commentary requiring a court to closely consider the voluntariness of the victim’s
behavior.” United States v. Mitchell, 353 F.3d 552, 561 (7th Cir. 2003).
Declining to follow Root, the Mitchell court held that a defendant cannot “unduly
influence[] a minor . . . in the case of an attempt where the victim is an undercover
police officer . . . .” Id. at 554.
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The Sixth Circuit has taken a third position. It characterized the Root
approach as a defendant-focused inquiry and the Mitchell approach as a victim-
focused inquiry. United States v. Chriswell, 401 F.3d 459, 468 (6th Cir. 2005).
The Sixth Circuit shares the Seventh Circuit’s concern that the Root approach
inadequately considers “whether the defendant’s actions compromised the
voluntariness of the victim’s actions.” Id. (citing U.S. SENTENCING GUIDELINES
MANUAL § 2A3.2(b)(2)(B)).
The Sixth Circuit asserts, however, that “the Mitchell rationale sweeps
unnecessarily broadly.” Id. “The Mitchell court’s reasoning,” according to the
Sixth Circuit, “effectively makes it impossible to apply § 2A3.2(b)(2)(B) in any
case of attempt, regardless of whether the victim is an actual child or an
undercover agent.” Id. Finding neither the Root nor Mitchell approach fully
satisfactory, the Sixth Circuit “h[e]ld that § 2A3.2(b)(2)(B) is not applicable in
cases where the victim is an undercover agent representing himself to be a child
under the age of sixteen.” Id. at 469.
The Sentencing Commission has addressed the circuit split by proposing
Amendment 7 to the Guidelines. Unless Congress acts otherwise, Amendment 7
will take effect on November 1, 2009. Amendment 7 would provide in the
Commentary to §§ 2A3.2 and 2G1.3 that the undue influence enhancement “does
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not apply in a case in which the only ‘minor’ . . . involved in the offense is an
undercover law enforcement officer.” AMENDMENTS TO THE SENTENCING
GUIDELINES (May 1, 2009), at 27–28,
http://www.ussc.gov/2009guid/20090501_Reader_Friendly_Amendments.pdf. It
would also provide in the Commentary to both sections “that ‘[t]he voluntariness
of the minor’s behavior may be compromised without prohibited sexual conduct
occurring.’” Id. at 26.
Although Amendment 7 would resolve the circuit split against our
precedent, it has no legal force until Congress adopts it. “The law of this circuit is
‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially
overrule a prior panel decision.” Cargill v. Turpin, 120 F.3d 1366, 1386 (11th Cir.
1997) (citation omitted). In light of Root and its progeny, we must conclude that
the district court did not err by applying § 2G1.3(b)(2)(B)(ii)’s two-level
enhancement.
III. CONCLUSION
We affirm Faris’ conviction and sentence.
AFFIRMED.
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