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about his interpretation of what happened with his 
great-niece, which was consistent with the earlier 
statements of Warren and defense counsel. Pugh's 
mother and his sisters Joyce and Brenda also testified 
on Pugh's behalf; his mother and Joyce discounted the 
allegation regarding Pugh's great-niece. 
After two sentencing hearings in which the 
district court took testimony on this issue, ultimately 
no factual findings were made regarding whether or 
how the incident occurred. 
4. The record is confusing as to what Pugh 
exactly admitted to being addicted to during 
the FBI interviews-whether it was child 
pornography or internet conversations. Specifically, 
Special Agent Haynes testified that Pugh admitted in 
his second interview that "he was addicted to the 
conversations." Haynes later testified that when he 
asked Pugh why he didn't just stop eliciting the child 
pornography, Pugh responded "that he was addicted to 
it," and on cross-examination, Haynes answered yes 
when asked if "[Haynes] said that [Pugh] said that 
[Pugh] was addicted to child porn," and when asked if 
"[Pugh] told [Haynes] [Pugh] was addicted to the 
conversations he was having in the chat rooms." Pugh 
testified that he knew they were talking about child 
pornography at the second interview (when the 
alleged addiction comment was made), but explained, 
"I was nervous. I wish I hadn't said some of the things 
I had." 
Haynes 
further 
testified 
that 
during 
the 
interviews, Pugh understood the difference between 
child pornography and adult pornography. On 
cross-examination, when asked if Pugh might have 
said that he was addicted to the chat room 
conversations that resulted in him receiving child 
pornography, as opposed to being addicted to the child 
pornography, Haynes would not concede that he and 
Pugh had misunderstood each other. 
Glaser testified that as a certified "Computer 
Analysis and Response Team" or "CART' examiner, 
he had examined Pugh's computers. Glaser found 
images of obscene adult pornography and of child 
pornography on the machines. Glaser confirmed that 
there were 10 known victims-children whose 
identities have been established by the government-in 
the child pornography found on Pugh's computer. 
Glaser had no prior experience with a defendant like 
Pugh, who entered chat rooms disguised as a child to 
obtain adult pornography. Glaser said there were 
118,000 images on Pugh's computers, but most of 
those images were not pornographic. Of the 118,000 
images, Glaser estimated that more than 1000 of the 
images were pornographic. Of those 1000-plus 
images, Glaser said that approximately 60 images 
were child pornography. 
Pugh then testified. As for his first interview with 
Haynes, Pugh said that he did not know at the 
beginning of the questioning that the FBI agents were 
talking about child as opposed to adult pornography. 
When asked why he did not clarify his statements after 
he learned that Haynes had been talking about child 
pornography, Pugh said: "I was too scared to say 
anything because I've seen movies, court shows where 
you say that you want to change your statement, they 
could use that against you, saying, oh, he's changing 
his story, you know." Regarding his habit of entering 
chat rooms disguised as a girl, Pugh explained that he 
was looking for conversation: 
When I first got AOL, I had tried to be myself, 
and people would not talk to me. And a friend of mine 
at the time had instant-messaged me with a female 
name, and he said, hey Bruce, ifs me, Mark. And that's 
what gave me the idea of pretending to be a girl. And 
I'd go into a chat room, and you could type in 14, 
female, you know, describe what your age and sex is, 
and I would get instant messages galore. And I was 
like, oh, this is the way to go. But I was looking for 
chat. I never pushed it towards sexual chat. It was the 
males that I talked to that would push it towards sexual 
chat. I know it was wrong, but I would go along with it 
because I did enjoy talking to people. 
Following counsel's arguments, the district court 
adopted the findings and the calculations embodied in 
the PSI yielding an adjusted offense level of 30 and a 
criminal history category I, with a resulting advisory 
sentencing range of 97 to 120 months. Noting the 
seriousness of Pugh's crime and Congress's harsh 
treatment of it, the district court then explained its 
decision to impose a completely non-custodial 
sentence. 
The district court explained that Pugh had no 
significant criminal history, and no history that would 
suggest he had or would abuse children. The court 
determined 
that 
Pugh's 
possession of child 
pornography was "passive" and "incidental" to his 
actual goal of developing online relationships, even 
though Pugh pretended to be an underaged female in 
these online chats and, occasionally sent child 
pornography to others. " 
The court observed that 
Pugh took steps to minimize the receipt of child 
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pornography by reporting it and talking about it with 
his mother, and the court noted that he had voluntarily 
entered treatment for addiction to adult pornography. 
5. The district court actually said that Pugh 
"produced" child pornography, but because 
there is no evidence of production in the record, 
we assume the district court meant "distribution" 
rather than production. The evidence concerning 
distribution, as we have already noted, includes 
Special Agent Haynes's 
testimony 
that Pugh 
"admit[ted] to [him] that he had forwarded child 
pornography to others on his list in the chat rooms." 
The district court then cited to Warren's opinion 
that Pugh was not a pedophile and presented a low risk 
of re-offending, that Pugh would not benefit from a 
custodial sentence, and that Pugh was addicted to 
adult, but not child pornography. The court also noted 
that Pugh had not re-offended since his arrest and had 
been compliant with the court's pre-sentencing orders. 
The court contrasted Pugh's case with other 
defendants who pay for or actively solicit child 
pornography, and concluded that an "unusual sentence 
for an unusual case" was necessary, and that it was 
"convinced" that it would "never" see Pugh again. 
The district court proceeded to sentence Pugh to a 
five-year probationary term on the conditions that 
Pugh (1) continue his mental health treatment; (2) not 
possess a computer with Internet access; (3) consent to 
periodic, unannounced examinations of any computer 
equipment he possessed; (4) submit to searches based 
on reasonable suspicion; and (5) register with the state 
sex-offender registry. 
After the district court denied the United States's 
motion to reconsider the sentence and impose either a 
sentence within the Guidelines, or a sentence of at 
least one day in prison followed by a life term of 
supervised release, the United States timely appealed 
the sentence arguing that it was so disproportionately 
light in view of the seriousness of the offense that it 
amounted to an abuse of discretion, and was, 
therefore, unreasonable. 
II. 
Because the law of sentencing has been changing 
rapidly, we begin by providin some analysis of its 
current state. In United Stales  Booker. 543 U.S. 220 
(2005), the Supreme Court held that the mandatory 
Guidelines system codified in the Sentence Reform 
Act of 1984, 18 U.S.C. 4 3551 et seq. 28 U.S.C. 44 
221-221 ("SRA")-which had been enacted to reduce 
the unwarranted disparities that had plagued the 
previous discretionary sentencing regime id. at 250 
252. 253. 255. 256. 264. 267-violated the Sixth 
Amendment. Id. at 232-35 In its place, the Court 
identified two features of the SRA that would remain 
and work together "to move sentencing in Congress' 
preferred direction." Id. at 264. The first was a 
continued important role 
for 
the 
Sentencing 
Guidelines. See id. at 264-65. Specifically, the Court 
held that "[t]he district courts, while not bound to 
apply the Guidelines, must consult those Guidelines 
and take them into account when sentencing." Id. at 
The second was the continuation of appellate 
review. While Booker held that sentences could no 
longer be reviewed de novo, it determined that 
appellate 
courts 
thereafter 
would 
apply 
a 
"reasonableness" standard of review. According to 
Justice Stevens, the Court "expressly equated" 
reasonableness 
review 
"with 
the 
old 
abuse-of-discretion 
standard 
used 
to 
review 
sentencing departures." 1?ita I United States. 127 
S.Ct. 2456. 2471 n.2 (2007) (Stevens, J., joined by 
Ginsburg, J., concurring). As the Court explained in 
Booker, "reasonableness" standards are "not foreign 
to sentencing law." 543 U,S. at 262 "The Act has long 
required 
their 
use 
in 
important 
sentencing 
circumstances-both on review of departures, seen 
U.S.C. 4 3742(0(31 (1994 ed.), and on review of 
sentences imposed where there was no applicable 
Guideline see  3742(O(4). (b)(4). (0(41." M. (citing 
United States I White Face 383 F.3d 733. 737-4Q 
(8th Cir.2004). United States' Tsosie. 176 F.3d 1210 
1218-19 (10th Cir.2004); United Stalest Salinas. 3 
F.3d 582. 588-90 (7th Cir.2004). United States 
Cook. 291 Fjd 1297. 1300-02 (11th Cir.2002). 
United States I Olabanji 268 F.3d 636 637-39 (9th 
Cir.2001); United States I RamirezM. 241 F. 
37. 40-41 (1st Cir.20011)• see also United States 
Winingear. 422 F.3d 1241. 1246 (1 I th Cir.2005) (per 
curiam) ("Before Booker, we reviewed departures 
from the Guidelines for reasonableness."). Booker 
recognized that reasonableness review could not 
"provide the uniformity that Congress originally 
sought" when it enacted the SRA and its original 
scheme of mandatory Guidelines. 543 U.S. at 263. 
Nevertheless, reasonableness review would still "tend 
to iron out sentencing differences." Id. 
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Booker further held that in performing this 
review, we must measure "reasonableness" against the 
factors outlined by Congress in 18 U.S.C. § 3553(a). 
Fm'Booker. 543 U.S. at 261. The Supreme Court 
explained that the factors contained in Section 3553(a) 
would not only "guide" the district courts in 
sentencing, but that "Whose factors in turn will guide 
appellate courts, as they have in the past, in 
determining whether a sentence is unreasonable." Id.: 
accord Viningear. 422 F.3d at 1246;see also United 
I
States  Talley 431 F.3d 784. 788 (I I th Cir.2005) 
(per curiam) ("We must evaluate whether the sentence 
imposed by the district court fails to achieve the 
purposes of sentencing as stated in section 3553(a)."). 
We have also held that the burden of establishing that 
a sentence is unreasonable lies with the party 
challenging the sentence. Talky. 431 F.3d at 78&. 
6. Section 3553(a) provides the following 
considerations for the court to consider: 
(1) the nature and circumstances of the offense 
and the history and characteristics of the defendant; 
(2) the need for the sentence imposed-
(A) to reflect the seriousness of the offense, to 
promote respect for the law, and to provide just 
punishment for the offense; 
(B) to afford adequate deterrence to criminal 
conduct; 
(C) to protect the public from further crimes of the 
defendant; and 
(D) to provide the defendant with needed 
educational or vocational training, medical care, or 
other correctional treatment in the most effective 
manner; 
(3) the kinds of sentences available; 
(4) the kinds of sentence and the sentencing range 
established for ... the applicable category of offense 
committed by the applicable category of defendant as 
set forth in the guidelines[;] 
(5) any pertinent policy statement[;] 
(6) the need to avoid unwarranted sentence 
disparities among defendants with similar records who 
have been found guilty of similar conduct; and 
(7) the need to provide restitution to any victims 
of the offense. 
18 U.S.C. 6 3553(a). 
The next opportunity the Supreme Court had W 
address the new sentencing regime came in Rita I. 
United States. 127 S.Ct. 2456 (2007), where the Court 
concluded that appellate courts could properly 
presume that a sentence imposed within a properly 
calculated 
Sentencing 
Guidelines 
range 
was 
reasonable. In reaching this conclusion, the Court 
unambiguously said that appellate courts must apply 
"reasonableness" review to a district court's sentence, 
which "merely asks whether the trial court abused its 
discretion." 127 S.Ct. at 2465.Rita also explained that 
"[w]here the judge imposes a sentence outside the 
Guidelines, the judge will explain why he has done 
so." 127 S.Ct. at 2468. 
The Supreme 
urt most recently addressed 
sentencing in Gall 
United Stases. 128 S.Ct. 586 
(2007), and Kimbroushi United States. 128 S.Ct. 558 
(2007). F" Gall reviewed the reasonableness of a 
sentence falling far below the range recommended by 
the Guidelines (a probationary term instead of a 
sentence falling within the Guidelines range of 30-36 
months' imprisonment), and specifically addressed 
"whether a 
court of appeals may apply a 
'proportionality test,' and require that a sentence that 
constitutes a substantial variance from the Guidelines 
be justified by extraordinary circumstances." la 
S.Ct. at 591 The Court determined that "while the 
extent of the difference between a particular sentence 
and the recommended Guidelines range is surely 
relevant, courts of appeals must 
review all 
sentences-whether inside, just outside, or significantly 
outside the Guidelines range-under a deferential 
abuse-of-discretion standard." Id. 
7. Kimbrough primarily involved issues 
related to the Guidelines for crack cocaine 
offenses. 
In its analysis, Gall reiterated that "a district court 
should begin all sentencing proceedings by correctly 
calculating the applicable Guidelines range." Id. at 
596. Gall further emphasized that "after giving both 
parties an opportunity to argue for whatever sentence 
they deem appropriate, the district judge should then 
consider all of the 6 3553(a) factors to determine 
whether they support the sentence requested by a 
party." Id. 
Gall also repeated that appellate review of 
sentencing 
decisions 
employs 
the 
"familiar 
abuse-of-discretion standard of review," id. at 594, 
and then created a two-step process for conducting 
that review: fust, the appellate court "must... ensure 
that the district court committed no significant 
procedural error, such as failing to calculate (or 
improperly calculating) the Guidelines range, treating 
the Guidelines as mandatory, failing to consider the 1 
3553(a) factors, selecting a sentence based on clearly 
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erroneous facts, or failing to adequately explain the 
chosen sentence-including an explanation for any 
deviation from the Guidelines range." Gall. 128 S.Ct. 
at 597 The first step-aimed at addressing "procedural" 
errors-highlights the continued importance of the 
Guidelines, and the Booker Court's intention that the 
"continued use of the Guidelines in an advisory 
fashion would further the purposes of Congress in 
creating the sentencing system to be honest, fair, and 
rational." Talley. 431 F.3d at 787. So although the 
Court "reject [ed] ... an appellate rule that requires 
'extraordinary' circumstances to justify a sentence 
outside the Guidelines range ... [or] the use of a rigid 
mathematical formula that uses the percentage of a 
departure as the standard for determining the strength 
of the justifications required for a specific sentence," it 
nonetheless repeatedly emphasized that "appellate 
courts may therefore take the degree of variance into 
account and consider the extent of a deviation from the 
Guidelines." Gall. 128 S.Ct. at 595. 
Indeed, Gall explained that a district judge 
must make an individualized assessment based on 
the 
facts presented. If he 
decides 
that 
an 
outside-Guidelines sentence is warranted, he must 
consider the extent of the deviation and ensure that the 
justification is sufficiently compelling to support the 
degree of the variance. We fmd it uncontroversial that 
a major departure should be supported by a more 
significant justification than a minor one. 
Id. at 597 (emphases added). Thus, not only must 
the district courts "consult th[e) Guidelines and take 
them into account when sentencing,"Pooker. 543 U.S. 
at 264  they must properly calculate the Guidelines 
range antincludiel an explanation for any deviation 
from the Guidelines range." Gall. 128 5.O. at 597. 
After an appellate court has determined that "the 
district court's sentencing decision is procedurally 
sound,"Gall directs that "the appellate court should 
then consider the substantive reasonableness of the 
sentence imposed under an abuse-of-discretion 
standard." Id. at 597. The Court explained; 
When conducting this review, the court will, of 
course, take into account the totality of the 
circumstances, including the extent of any variance 
from the Guidelines range. If the sentence is within the 
Guidelines range, the appellate court may, but is not 
required to, apply a presumption of reasonableness. 
But if the sentence is outside the Guidelines range, the 
court 
may 
not 
apply 
a 
presumption 
of 
unreasonableness. It may consider the extent of the 
Page 7 
deviation, but must give due deference to the district 
court's decision that the 6 3553(a) factors, on a whole, 
justify the extent of the variance. The fact that the 
appellate court might reasonably have concluded that 
a different sentence was appropriate is insufficient to 
justify reversal of the district court. 
Id. (citation omitted). 
Gall reminds us once again, as Pugh suggests, to 
appreciate the institutional advantage that district 
courts have in applying and weighing the Section 
3553(a) factors in individual cases. Nonetheless, it 
also remains true that the district court's choice of 
sentence is not unfettered. Again, Gall makes clear 
that the district court is obliged to "consider all of the 
6 3553(a) factors to determine whether they support 
the sentence requested by a party." 128 S.Ct. at 596-97 
(emphasis added). The Section 3553(a)"factors in turn 
... guide appellate courts, as they have in the past, in 
determining whether a sentence is unreasonable." 
Booker. 543 U.S. at 261  accord Winingear. 422 F.3d 
at 1246;see also Tally/. 431 F.3d at 7$$ ("We must 
evaluate whether the sentence imposed by the district 
court fails to achieve the purposes of sentencing as 
stated in section 3553(a)."). The appellate court "will, 
of course, take into account the totality of the 
circumstances, including the extent of any variance 
from the Guidelines range." Gall. 128 S.Ct. at 597.Fla
8. Because we review the "totality of 
circumstances," a district court need not 
discuss each 
Section 3553(a) factor Talley. 431 F.3d at 786 
although "[w]here the judge imposes a sentence 
outside the Guidelines, the judge will explain why he 
has done so." Rita, 127 S.Ct. at 2468. 
These directives leave no doubt that an appellate 
court may still overturn a substantively unreasonable 
sentence, albeit only after examining it through the 
prism of abuse of discretion, and that appellate review 
has not been extinguished. Thus, a sentence still may 
be substantively unreasonable if it does "not achieve 
the purposes f sentencing stated in 6 3553(a)." 
I
United States  Martin. 455 F.3d 1227. 1237 (11th 
Cir.2006). So even though we afford "due deference 
to the district court's decision that the 6 3553(a) 
factors, on a whole, justify the extent of the 
variance "Gall. 128 S.Ct. at 597 we may find that a 
district court has abused its considerable discretion if 
it has weighed the factors in a manner that 
demonstrably yields an unreasonable sentence. We are 
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therefore still required to make the calculus ourselves, 
and are obliged to remand for resentencing "if we are 
left with the definite and firm conviction that the 
district court committed a clear error of judgment in 
weighing the § 3553(a) factors by arriving at a 
sentence that lies outside the range of reasonable 
sement es dictated by the facts of the case." United 
Pates I McBride. No. 06-16544. 2007 WL 4555205 
at *3 (1 I th Cir. Dec. 28. 2 
) (internal quotation 
marks omitted). United States 
Clay. 13 F.3d 739 
743 (11th Cir.2007); cf. Unite States 
Fernandez 
443 F.3d 19.34-35 (2d Cir.2006) (stating that "we will 
not second guess the weight (or lack thereof) that the 
judge accorded to a given factor ... [under 4 3553(a) ] 
as long as the sentence ultimately imposed is 
reasonable in light of all the circumstances presented" 
(emphasis added)). This standard of review is 
altogether consonant with our traditional use of the 
abuse-of-discretion standard, under which we will 
reverse only if "we find that the district court has made 
a clear error of judgment...." United States. Frazier 
387 F.3d 1244. 1259(11th Cir.2004) (en bane). 
Moreover, a district court's unjustified reliance on 
any one Section 3553(a) factor may be a symptom of 
an unreasonable sentence. See United States I Crisp 
454 F.3d 1285. 1292 (11th Cir.2006) (citing United 
States 
I
 
Rattobglli. 452 F.3d 127. 137 (24 Cir.2006); 
United States
Ture. 450 F.3d 352. 358-59 (8th 
Cir.2006); United States I Hampton. 
F.3d 284 
288-89 (4th Cir.2006). United States 
Cage. 451 
F.3d 585 (10th Cir.20061). accord United States v. 
Ward. 506 F.3d 468. 478 (6th Cir.2007). Likewise, 
"[a) sentence may be substantively unreasonable when 
the district court selects the sentence arbitrarily, bases 
the sentence on impermissible factors [or] fails to 
consider pertinent section 3553(a) factors." Ward. 506 
F.3d at 478 (interrhal quotation marks omitted); see 
also United States I Ausburn. 502 F.3d 313. 328 (3d 
Cir.2007) (asking if the district court: "(1) exercised 
its discretion by giving meaningful consideration to 
the § 3553(a) factors; and (2) applied those factors 
reasonably by selecting a sentence grounded on 
reasons logical and consistent with the factors'
(internal quotation marks omitted); United States 
Willineham. 497 F.3d 541, 543-44 (5th Cir.2007) 
(asking if sentence: "(1) does not account for a factor 
that should have received significant weight, (2) gives 
significant weight to an irrelevant or improper factor, 
or (3) represents a clear error of judgment in balancing 
the sentencing factors") (citation omitted); United 
States' Boleware. 498 F.3d 859. 861 (8th Cir.2007) 
(same). 
We hasten to add that while the application of 
these analyses may suggest an unreasonable sentence, 
they do not necessarily make a sentence unreasonable: 
Gall itself found that the district court did not commit 
reversible error simply because it "attached great 
weight: to a single factor. 128 S.Ct. at 600;see United 
States  I Pauley. No. 07-4270. 2007 WL 4555520. at 
*7 (4th Cir. Dec. 28. 2007). However, it remains 
uncontroverted that a sentence suffering from these 
"symptoms" may in fact be unreasonable, depending 
on an examination of the "totality of the 
circumstances." Gall. 128 S.Ct. at 597. And a review 
of the totality of the circumstances in this case through 
the lens of abuse of discretion yields the conclusion 
that Pugh's sentence is substantively unreasonable. 
The district court found "based on the facts of this 
case, based on [Pugh's) personal characteristics and 
history, and based on a consideration of all of the other 
factors," that Pugh did not deserve a Guidelines 
range-much less a custodial-sentence. in reciting its 
rationale, the district court focused primarily on one of 
the many Section 3553(a) factors-"the nature and 
circumstances of the offense and the history and 
characteristics of the defendant." 18 U.S.C. 
3553(a1(1). In particular, as we have noted, the district 
court emphasized that Pugh (1) was a first-time 
offender without a history suggesting that he had or 
would abuse children; (2) was addicted to adult 
pornography and had sought treatment for that 
addiction; (3) was not a pedophile and presented a low 
risk for recidivism, according to a psychologist who 
evaluated him; and (4) complied with the terms and 
conditions of his pretrial supervision. The district 
court further found that Pugh's possession offense was 
"passive" and "incidental" to his actual goal of 
developing online relationships, and that Pugh had 
taken steps to report his receipt of child pornography 
to AOL and his family. 
To be sure, we appreciate the thoughtfulness and 
care taken by the district court in sentencing Pugh-the 
court held two sentencing hearings, and deliberated 
extensively over its sentencing decision in this case. 
We also recognize the wide discretion afforded to 
district courts in sentencing, especially since the 
district court is in a "superior position to find facts and 
judge their import." Gall. 128 S.Ct. at 597 (internal 
quotation marks omitted). Accordingly, we accept, as 
we must, the findings of fact made by the district court 
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in this case; we discern no clear error in this regard. 
We do, however, observe these additional salient 
facts that were elicited, and uncontroverted, at the 
sentencing hearings: Pugh intentionally posed as a 
teenage girl and knew that he would receive child 
pornography through this posture; Pugh derived a 
benefit from these images, as evidenced by Pugh's 
admission that "this [wa]s the way to go" for him to 
achieve his "goal" of communication; Pugh repeatedly 
downloaded the child pornography images and videos 
at least 70 times over a period of several years; Pugh 
forwarded some of these images to others in the chat 
room; the images were grotesque, and, as noted, 
included a video of an adult male raping an infant girl 
and a picture of an adult male having sex with a 
toddler with a dog collar around her neck; Pugh failed 
to report these images to the police; and the 
psychologist admitted that Pugh did not present "no" 
risk for recidivism. Likewise, we note that the federal 
penal code treats the possession of child pornography 
and child abuse as distinct offenses. 47-09
9. See, e.g., United States' Goff. 501 F.3d 
250. 259 (3d Cir.2007) (where a defendant 
was charged with child pornography possession 
but "was not charged with molestation, ... pointing out 
that he hadn't committed it is, in one sense, 
irrelevant"): United States' Grosenheider. 200 F.34 
321. 332-34 (5th Cir.2000) (collecting cases rejecting 
departures based on rationale that defendant had "not 
abused 
any 
child, and had no 
inclination, 
predisposition or tendency to do so"). 
Although the district court concluded, on these 
facts, that Pugh's conduct was "incidental" and 
"passive," his conduct 
was neither 
isolated, 
unintentional nor lawful. Nevertheless, Pugh argues in 
his supplemental brief that "the district judge regarded 
Pugh's passive and incidental, as opposed to wilful, 
possession of the child pornography as a reasonable 
basis for giving him a less severe sentence than the 
sentences he has given to more typical child 
pornography offenders who solicit or purchase child 
pornography images." App'ee Supp. Br. at 19 
(emphasis added). This argument misses the mark. 
Pugh seems to suggest that because the district court 
found that his ultimate motive was not to gather child 
pornography, somehow his crime was not "willful." 
But on this record there can be no dispute that Pugh 
downloaded and forwarded child pornography 
consciously, 
intentionally, 
deliberately, 
and 
voluntarily, regardless of whether the receipt of child 
Page 9 
pornography was his end goal or only a means by 
which to encoura 
others to "chat" with him. CI 
Georgia Elec. Co. Ige  Marshall. 595 F.2d 309. 318 (5th 
Cir.1979 
("a conscious, intentional, deliberate, 
voluntary decision, which, regardless of a venial 
motive, properly is described as willful") (internal 
quotation marks omitted). r' 10 Indeed, he pled to 
"knowingly possess[ing]" 68 images and two videos 
of child pornography. While motive may be a valid 
concem at sentencing, it cannot obliterate the 
knowing, deliberate and repeated means by which this 
rious crime was committed. See, e.g., United States 
I  Carlson. 498 F.3d 761. 766-67 (8th Cir.2007) 
(concluding that a district court's reliance on a 
defendant's intentions, which were "arguably better 
than a defendant who uses the funds for purely 
personal reasons" but nonetheless resulted in fraud on 
the government, "not particularly compelling" for a 
reduced sentence). 
10. In Bonner' City of Prichard. 661 F.2d 
1206. 1209 (11th Cir.1981) (en bane), we 
adopted as binding precedent all decisions of 
the former Fifth Circuit that were rendered 
prior to October 1, 1981. 
With this factual background in mind, we turn to 
whether (when viewed through the prism of abuse of 
discretion) 
the 
district 
court's 
sentence 
was 
substantively unreasonable. While undertaking this 
calculus, we are not limited to considering only the 
factors expounded upon by the district court; as the 
Supreme 
Court 
has 
made 
clear 
Section 
3553(arremains in effect, and sets forth numerous 
factors that guide sentencing. Those factors in turn 
will guide appellate courts, as they have in the past, in 
determining whether a sentence is unreasonable." 
Booker. 543 U.S. at 261. Indeed, we could not begin to 
review the reasonableness of a sentence without 
examining all of the relevant factors embodied in 
Section 3553(a). 
Having reviewed all of those factors in the 
context of this case, we conclude that in imposing a 
non-custodial sentence, the district court performed a 
narrow, 
although 
intensive, 
analysis 
that 
minimized-and in some instances, ignored-many of 
the important Section 3553(a) concerns that we are 
directed to consider by Congress and the Supreme 
Court. Id.; Gall. 128 S.Ct. at 596. As we have already 
observed, a sentence may be unreasonable if it is 
grounded solely on one factor, relies on impermissible 
factors, or ignores relevant factors. See supra at _.At 
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the end of the day, the sentence in this case is 
unreasonable, and the district court's analysis suffers 
from many of these "symptoms." We detail them 
below. 
First. Pugh's sentence does not "afford adequate 
deterrence 
to 
criminal 
conducci.e., 
general 
deterrence. 18 U.S.C. 6 3553(aX2)(B); Martin. 455 
F.3d at 1240 This factor-along with retribution, 
rehabilitation, and incapacitation-expressly makes up 
one of the four purposes of sentencing identified by 
Congress in Section 3553(a). SeeS.Reo. No. 98-225. at 
75-76 (1983) reprinted in 1984 U.S.C.C.A.N. 3182, 
3259 ("to deter others from committing the offense" is 
one of the four purposes of sentencing). Congress 
intended that courts consider each of these four stated 
factors "in imposing sentence in a particular case." Id. 
at 68, 75, 1984 U.S.C.C.A.N. at 3251, 3258; id. at 77, 
1984 U.S.C.C.A.N. at 3260 ("The intent of subsection 
(aX2) is ... to require that the judge consider what 
impact, if any, each particular purpose should have on 
the sentence in each case."). Indeed, as the Eighth 
Circuit has observed, "general deterrence ... is one of 
the key purposes of sentencing...." United States 
Medearis. 451 F.3d 918. 920-21 (8th Cir.2006) 
(quotations omitted). 
This is particularly compelling in the child 
pornography context, as the Seventh Circuit has aptly 
said: 
Young children were raped in order to enable the 
production of the pornography that the defendant both 
downloaded and uploaded-both consumed himself 
and disseminated to others. The greater the customer 
demand for child pornography, the more that will be 
produced. Sentences influence behavior, or so at least 
Congress thought when in 18 U.S.C. 6 3553(a) it made 
deterrence a statutory sentencing factor. The logic of 
deterrence suggests that the lighter the punishment for 
downloading and uploading child pornography, the 
greater the customer demand for it and so the more 
will be produced. 
United States' Goldberg. 491 F.3d 668. 672 (7th 
Cr.) (citations omitted), cert. denied,128 S.Ct. 666 
(2007); see also Ge. 501 F.3d at 261 ("deterring the 
production of child pornography and protecting the 
children who are victimized by it are factors that 
should have been given significant weight at 
sentencing, but in fact received not a word from the 
District Court"). Pugh's probationary sentence, we 
think, tends to undermine the purpose of general 
deterrence, and in turn, tends to increase (in some 
Page 10 
palpable if Immeasurable way) the child pornography 
market. This problem is compounded not just because 
of the number of images Pugh downloaded over an 
extended time frame, but also because Pugh 
distributed some of the images to others. 
Pugh suggests, however, that the district court's 
observation that it had imposed "harsh but ... 
appropriate sentences" in other cases adequately 
addressed general deterrence and respect for the law (a 
factor discussed below). Even if this statement could 
be read as touching, albeit tangentially, on these 
factors, we still cannot say that the resulting sentence 
fairly reflects their consideration. Indeed, it is unclear 
to us how the district court's sentences in other cases 
can be seen as explaining how a probationary sentence 
for possession of child pornography in this case 
promotes general deterrence or, for that matter, 
respect for the law. This seems to be especially true 
here where unlike in Gall, no other co-defendants 
were sentenced for the same crime that Pugh has 
committed. Quite simply, by imposing a non-custodial 
sentence, the district court accorded no weight to 
general deterrence. 
Second, this sentence failed "to reflect the 
seriousness of the offense, to promote respect for the 
law, and to provide just punishment for the offense." 
18 U.S.C. 6 3553(a)(2XA). As described in the 
legislative history of Section 3553(a): 
This purpose-essentially 
the 'just deserts' 
concept-should be reflected clearly in all sentences; it 
is another way of saying that the sentence should 
reflect the gravity of the defendant's conduct. From the 
public's standpoint, the sentence should be of a type 
and length that will adequately reflect, among other 
things, the harm done or threatened by the offense, and 
the public interest in preventing a recurrence of the 
offense. From the defendant's standpoint the sentence 
should not be unreasonably harsh under all the 
circumstances of the case and should not differ 
substantially from the sentence given to another 
similarly situated defendant convicted of a similar 
offense under similar circumstances. 
S.Rep. No. 98-225 at 75-76, 1984 U.S.C.C.A.N. 
at 3258-59. "411
11. Notably, this notion of "just deserts" or 
retribution is a distinct consideration from 
general deterrence. See United States' Foss. 501 
F.2d 522. 527 (1st Cir.1974) (cited with approval in 
the legislative history of Section 3553(a)) ("[T]he 
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view that punishment should fit the offender has never 
yet been held to eliminate general deterrence as a 
factor to be considered along with others.... This is so 
even though general deterrence concerns itself not 
with the individual offender but with the sentence's 
impact on others."). 
The contents of Pugh's computer contained 
depraved images, and there were 10 known (and 
countless unknown) victims in the 68 images and two 
videos. As the government emphasized and Pugh's 
own expert Warren conceded at the sentencing 
hearing, the pictures undeniably have a devastating 
impact on the young victims. In this connection, the 
Supreme Court has observed: 
The legislative judgment, as well as the judgment 
found in the relevant literature, is that the use of 
children as subjects of pornographic materials is 
harmful to the physiological, emotional, and mental 
health of the child.... 
It has been found that sexually exploited children 
are 
unable 
to 
develop 
healthy 
affectionate 
relationships in later life, have sexual dysfunctions, 
and have a tendency to become sexual abusers as 
adults. Sexual molestation by adults is often involved 
in the production of child sexual performances. When 
such performances are recorded and distributed, the 
child's privacy interests are also invaded.... 
The distribution of photographs and films 
depicting sexual activity by juveniles is intrinsically 
related to the sexual abuse of children.... (T)he 
materials produced are a permanent record of the 
children's participation and the harm to the child is 
exacerbated by their circulation.... 
As one authority has explained: 
"[P]omography poses an even greater threat to the 
child victim than does sexual abuse or prostitution. 
Because the child's actions are reduced to a recording, 
the pornography may haunt him in future years, long 
after the original misdeed took place. A child who has 
posed for a camera must go through life knowing that 
the recording is circulating within the mass 
distribution system for child pornography." Shouvlin, 
Preventing the Sexual Exploitation of Children: A 
Model Act, 17 Wake Forest L.Rev. 535, 545 (1981). 
See also (Schoettle, Child Exploitation: A Study of 
Child Pornography, 19 J. Am Acad. Child Psychiatry 
289, 292 (1980) ) ("(1)t is the fear of exposure and the 
tension of keeping the act secret that seem to have the 
most profound emotional repercussions"); Note, 
Protection of Children from Use in Pornography: 
Toward Constitutional and Enforceable Legislation, 
12 U. Mich. J. Law Reform 295, 301 (1979) 
(interview with child psychiatrist) ("The victim's 
knowledge of publication of the visual material 
increases the emotional and psychic harm suffered by 
the child"). 
New York I Ferber. 458 U.S. 747. 758-59 & 
trtr9-1011982) (citations omitted); see also United 
Slates 
Yuknavich. 419 F.3d 1302. 1310 (11th 
Cir.2005) ("possession of child pornography is not a 
victimless 
crime")• 
Goff. 
501 F.3d 
at 
259 
("Consumers such as Goff who 'merely' or 
'passively' receive or possess child pornography 
directly contribute to this continuing victimization."). 
Moreover, Pugh's possession-and distribution-of 
child pornography undeniably created the demand for 
more. See Yuknavich. 419 F.3d at 1310 ("A child 
somewhere was used to produce the images 
downloaded ..., in large part, because individuals like 
[the defendant) exist to download the images."). 
Indeed, Pugh's own expert, Warren, also conceded 
that Pugh contributed to the demand for child 
pornography, increasing the victimization of still more 
children. The Supreme Court has explained: 
It is ... surely reasonable for the State to conclude 
that it will decrease the production of child 
pornography if it penalizes those who possess and 
view the product, thereby decreasing demand.... 
According to the State, since the time of our decision 
in Ferber, much of the child pornography market has 
been driven underground; as a result, it is now 
difficult, if not impossible, to solve the child 
pornography problem by only attacking production 
and distribution. Indeed, 19 States have found it 
necessary to proscribe the possession of this 
material.... The State's ban on possession and viewing 
encourages the possessors of these materials to 
destroy them. [In addition] ..., encouraging the 
destruction of these materials is also desirable because 
evidence 
suggests 
that 
pedophiles use child 
pornography to seduce other children into sexual 
activity. 
Osborne' Ohio. 4 
U.S. 103. 109-11 (1990); 
see also United States I Williams, 444 F.36 1286 
J290 (11th Cir.2006) ("Our concern is not confined to 
the immediate abuse of the children depicted in these 
images, but is also to enlargement of the market and 
the universe of this deviant conduct that, in turn, 
results in more exploitation and abuse of children." 1, 
cert. granted 127 S.Ct. 1874 (2007)• United States 
Davis. 204 F.3d 1064. 1066 (11th Cir.I9991 (per 
curiam) ("We have recently explained that the harm 
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resulting from possession of child pornography occurs 
tam
(
when one sus ' 
et for such pictures.") (citing 
United States 
146 F.3d 1281. 1285 (11th 
Cir.1998))- Go . 501 F.3d at 260 ("[Tjhe consumer of 
child pornography 'creates a market' for the abuse by 
providing an economic motive for creating and 
distributing the materials."). 
In short, regardless of Pugh's motive, his crime 
was a serious one, as recognized by Congress and the 
courts. Congress repeatedly has stressed the terrible 
harm child pornography inflicts on its victims, dating 
back to its rust enactment of child pornography laws 
in 1977. F1412 Since that time, it has not only made 
detailed findings, but has expanded repeatedly 
criminal exposure for the possession of child 
pornography: 
12. 
Congressional 
findings 
appear 
throughout the following authorities: 
• The Senate Report on the Protection of Children 
Against Sexual Exploitation Act of 1977 recognized 
that: "the use of children as prostitutes or as the 
subjects of pornographic materials is very harmful to 
both the children and the society as a whole ... [; s]uch 
encounters cannot help but have a deep psychological, 
humiliating impact on these youngsters and jeopardize 
the possibility of healthy, affectionate relationships in 
the future ... [; and] such base and sordid activities ... 
may permanently traumatize and warp the minds of 
the children involved...." S. Rep. 95.438. at 4-9 
(19771, reprinted in 1978 U.S.C.C.A.N. 40, 41-46. 
• Findings in the Child Protection Act of 1984 
recognized that "the use of children as subjects of 
pornographic 
materials 
is 
harmful 
to 
the 
physiological, emotional, and mental health of the 
individual child and to society." Pub.L. No. 98-292, § 
2, 98 Stat. 204 (1984). 
• Findings in the Child Abuse Victims' Rights Act 
of 1986 recognized that "Congress has recognized the 
physiological, psychological, and emotional harm 
caused by the production, distribution, and display of 
child pornography by strengthening laws prescribing 
such activity." Pub.L. No. 99-500, § 702(2), 100 Stat. 
1783 (1986). 
• Findings in the Child Pornography Prevention 
Act of 1996 recognized that: "(1) the use of children in 
the production of sexually explicit material, including 
photographs, films, videos, computer images, and 
other visual depictions, is a form of sexual abuse 
which can result in physical or psychological harm, or 
both, to the children involved; (2) where children are 
used in its production, child pornography permanently 
Page 12 
records the victim's abuse, and its continued existence 
causes the child victims of sexual abuse continuing 
harm by haunting those children in future years; (3) 
child pornography is often used as part of a method of 
seducing other children into sexual activity; ... (7) the 
creation or distribution of child pornography which 
includes an image of a recognizable minor invades the 
child's privacy and reputational interests, since images 
that are created showing a child's face or other 
identifiable feature on a body engaging in sexually 
explicit conduct can haunt the minor for years to 
come; ... (10XA) the existence of and traffic in child 
pornographic images creates the potential for many 
types of harm in the community and presents a clear 
and present danger to all children; and (B) it inflames 
the desires of child molesters, pedophiles, and child 
pornographers who prey on children, thereby 
increasing the creation and distribution of child 
pornography and the sexual abuse and exploitation of 
actual children who are victimized as a result of the 
existence and use of these materials; (11XA) the 
sexualization and eroticization of minors through any 
form of child pornographic images has a deleterious 
effect on all children by encouraging a societal 
perception of children as sexual objects and leading to 
further sexual abuse and exploitation of them; and (B) 
this sexualization of minors creates an unwholesome 
environment which affects the psychological, mental 
and emotional development of children and 
undermines the efforts of parents and families to 
encourage the sound mental, moral and emotional 
development of children...." Pub.L. No. 104-208, § 
121, 110 Stat. 3009 (1996). 
• Findings in the Prosecutorial Remedies and 
Other Tools to End the Exploitation of Children Today 
Act of 2003 recognized that: "[c]hild pornography 
results from the abuse of real children by sex 
offenders; the production of child pornography is a 
byproduct of, and not the primary reason for, the 
sexual abuse of children." Pub.L. No. 108-21, § 
501(12), 117 Stat. 650 (2003). 
1990. In Pub.L. No. 101-647, § 323, 104 Stat. 
4789 (1990), codified at 18 U.S.C. 6 2252M1(4)(41, 
Congress proscribed the knowing possession of child 
pornography, adding to a statute that had made the 
knowing receipt of this material a crime; 
1992. In Pub.L. No. 102-141, § 632, 105 Stat. 834 
(1992), codified at 28 U.S.C. 6 994 note, Congress 
directly amended the Guidelines provision addressing 
the offense of child pornography possession, 
increasing the base offense level by two levels; 
1995. In Pub.L. No. 104-71, §§ 2, 3, 109 Stat. 774 
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(1995), codified at 28 U.S.C. 6 994 note, Congress 
again amended the Guidelines provision, increasing 
the base offense level by another two levels, and 
adding an enhancement if a computer was used to 
transport or ship the material; 
1996. In Pub.L. No. 104-208, § 121, 110 Stat. 
3009 (1996), codified at 18 U.S.C. 6 2252A(a)(5)3) 
Congress added another statutory provision for 
possession, almost identical to the existing one, but 
more targeted at the problem of new computer 
technologies; FNI3
13. This is the offense to which Pugh pled 
guilty, 18 U.S.C. 6 2252A(a)(5)(B). 
1998. In Pub.L. No. 105-314, § 203, 112 Stat. 
2974 (1998), codified at 18 U.S.C. 44 2252(a)(4Wb) 
and 2252A(a)(5)(b), Congress amended the statutory 
provisions proscribing possession by reducing the 
number of images needed for conviction from three to 
one; and 
2003. In Pub.L. No. 108-21, §§ 101, 401, 117 
Stat. 650 (2003), codified at 18 U.S.C. § 3583(k) and 
28 U.S.C. 6 994 note, Congress increased the statutory 
maximum term of supervised release for child 
pornography possession to life, and directly amended 
the Guideline provision, adding an enhancement 
based on number of images. 
In light of these detailed legislative findings and 
numerous legislative enactments, we cannot help but 
underscore the seriousness of this crime. 
Although the district court recognized that child 
pornography is "a serious crime," the sentence it 
imposed did not reflect the seriousness of the crime. 
Nor did 
the 
sentence 
reflect 
any apparent 
consideration of promoting respect for the law. Even 
when 
measured 
through 
the 
lens 
of 
abuse-of-discretion 
review, 
these 
failings 
are 
conspicuous. See, e.g., United States' Perrin. 478 
F.3d 672, 676 (5th Cir.2007) ("Though it noted the 
severity of the offense, the court failed to explain how 
this severity, particularly the images' depravity and 
numerosity, factored into its decision to depart 
downward from the guideline range to the statutory 
minimum."). 
Indeed, even Pugh recognized the significance of 
his crime, proffering to the district court that "a 
lengthy period of home confinement"together with a 
"lifetime" of supervised release would "address the 
Page 13 
seriousness of the offense and promote respect for the 
law as well provide adequate punishment." His 
resulting 
probationary 
sentence, 
on 
the 
contrary-without any home confinement or long-term 
supervised release-afforded precious little if any 
weight to the principles underlying 18 U.S.C. 
3553(aH2)(Al. 
Third, the sentence imposed did not reflect 
consideration of "any pertinent policy statement," 18 
U.S.C. 6 3553(a)(5), despite the Guidelines' express 
policy statement for child pornography cases just like 
Pugh's. As early as the 2002 Guidelines Manual, the 
version applicable to Pugh's sentence, the relevant 
policy statement provided that, "[i]f the instant offense 
of conviction is a sex offense, the statutory maximum 
tenn of supervised release is recommended." U.S.S.G. 
6 5O1.2(c) (2002) (emphasis added). Concurrently, 
the statute itself directed that "the authorized term of 
supervised release for" a sex offense "involving a 
minor victim ... is any term of years or life." 18 U.S.0 
6 3583(k) (emphasis added), amended by Pub.L. No. 
109-248, § 141(O(2), 120 Stat. 587 (2006); see also 
United States I 
Allison. 447 F.3d 402. 407 (5th 
Cir.2006) (noting that "the policy statement 
recommending a life term of supervised release cannot 
be read in a vacuum, as the policy statement is derived 
from the statutory authority in 18 U.S.C. 6 3583(k) 
and is consistent with Congress's intention to punish 
[sex offenders] with life terms of supervised release 
because of the high rate of recidivism") (footnote 
omitted). 
The legislative history in 2003 surrounding the 
enactment of Section 3583(k) reveals that" 'Congress 
and the Sentencing Commission intended to impose 
life terms of supervised release on sex offenders. 
Congress explicitly recognized the high rate of 
recidivism in convicted sex offenders.' " Perrin. 478 
F.3d at 678 (quoting Allison. 447 F.3d at 406 (citing in 
turn 18 U.S.C. 6 3583(k); H.R.Rep. No. 108-66, 
reprinted in 2003 U.S.C.C.A.N. 683 (2003) 
(contreport))). The Fifth Circuit has explained: 
The legislative history of 6 3583(k) states that the 
life term of supervised release was in response to the 
"long-standing concerns of Federal judges and 
prosecutors regarding the inadequacy of the existing 
supervision periods for sex offenders, particularly for 
the perpetrators of child sexual abuse crimes, whose 
criminal conduct may reflect deep-seated aberrant 
sexual disorders that are not likely to disappear within 
a few years of release from prison. The current length 
of the authorized supervision periods is not consistent 
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with the need presented by many of these offenders for 
long-term and in some cases, life-long monitoring and 
oversight." 
Allison. 447 F.3d at 405-06 (quoting H.R.Rep. 
No. 108-66, at 49-50 (2003), reprinted in 2003 
U.S.C.C.A.N. 683, 684; and citing United States 
Moriarty. 429 F.3d 1012. 1025 (11th Cir.2005)). As 
the Fifth Circuit put it in another child pornography 
case, "[i]t is precisely this type of offender that 
supervised release was designed to rehabilitate." 
United States I Armendariz. 451 F.3d 352. 362 n.6 
(5th Cir.2006) (citing S.Reo. No. 98-225, at 124 
(1984), reprinted in 1984 U.S.C.C.A.N. 3182 ("[T]he 
primary goal (of supervised release] is to ease the 
defendant's transition into the community after the 
service of a long prison term for a particularly serious 
offense, or to provide rehabilitation to a defendant 
who has spent a fairly short period in prison for 
punishment or other purposes but still needs 
supervision and trainin programs after release.")); 
see also United States 
Johnson. 529 U.S. 53. 59 
(2000) ("The objectives of supervised release would 
be unfulfilled if excess prison time were to offset and 
reduce terms of supervised release. Congress intended 
supervised release to assist individuals in their 
transition to community life. Supervised release 
fulfills rehabilitative ends, distinct from those served 
by incarceration.") (citing S.Rep. No. 98-225. at 124 
(1983)). 
Yet the sentence imposed, which contains no 
period of supervised release, did not reflect the policy 
statement, the statute, or these underlying concerns. 
Fourth, the sentence did not adequately reflect 
two related factors-the "kinds of sentences available" 
and "the sentencing range" established by the 
Guidelines. 18 U.S.C. & 3553(O(31. (4). Nor did the 
district court "ensure that the justification [for the 
extent of its deviation from the Guidelines) (wa]s 
sufficiently compelling to support the degree of the 
variance." Gall. 128 S.Ct. at 597. 
Pugh's adjusted offense level was 30, and his 
criminal history category was level I, making his 
offense fall into "Zone D" of the Sentencing Table. 
See Sentencing Table, U.S.S.G. § 5A. Notably, the 
Guidelines do not authorize a sentence of probation 
where the applicable Guidelines range is in Zone C or 
D of the Sentencing Table. SeeU.S.S.G. &4 5B1.I cmt. 
n.2, 5C1.1(f). In addition, as we've already noted, 
Section 3583(k) of the statute provides that "any term 
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of years or life" of supervised release is mandated for 
sex offenders like Pugh, and the Guidelines 
recommend a life term of supervised release. See 
supra at .As a result, this probationary sentence 
varies both from the recommended Guidelines range, 
and also from the "kinds of sentences" available under 
the Guidelines. See18 U.S.C. 6 3553(a)(4). However, 
the district court did not so much as acknowledge that 
probation ordinarily was not available for this crime, 
nor that a life term of supervised release was 
recommended. 
Furthermore, while the district court accepted the 
Guidelines calculation, and asked on the record 
whether "Mr. Pugh deserves a 97-month sentence," it 
did not give any real weight to the Guidelines range in 
imposing the sentence. Not only did the district court 
impose probation, which is not permitted under the 
now-advisory Guidelines regime, but it departed just 
about as much as it could-some 97 months for an 
offense with a Guidelines calculation of 97.120 
months' imprisonment. The district court did not 
simply impose a 97-month downward variance; 
rather, it imposed a sentence of zero months' 
imprisonment. " 
14. We recognize that because the statute 
contains no mandatory minimum, Congress 
understood that a judge could sentence a 
defendant to zero months' imprisonment. The 
Seventh Circuit has "imagine[d] a case, 
involving the downloading of a handful of 
images none showing any prepubescent child 
or depicting any sexual activity, yet still 
constituting child pornography (the statute 
defines 
'child' 
as 
any 
minor 
and 
'pornography' as including besides actual 
sexual activity 'lascivious exhibition of the 
genitals or pubic area,'18 U.S.C. 66 2256(1) 
(2)(AWv)), in which a permissible sentence 
might be light." Goldberg. 491 F.3d at 672. 
But plainly that is not the case here. While 
there may be other circumstances in which a 
non-custodial sentence may be reasonable, 
this is not one of them. 
In the Supreme Court's parlance, the degree of 
variance imposed by the district court here-far greater 
than the 30-month variance imposed in Gall-is 
undeniably "major." Gall. 128 S.Ct. at 597. "In 
reviewing the reasonableness of a sentence outside the 
Guidelines range, appellate courts may therefore take 
the degree of variance into account and consider the 
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extent of a deviation from the Guidelines." Id. at 595 
(emphasis added). But the district court failed to even 
acknowledge that its sentence amounted to a 
97-month variance, and its implicit explanation for the 
variance-simply relying on Pugh's characteristics and 
motive-hardly matches the degree of variance it 
imposed. Quite simply, in our view, the district court 
did not support this "major departure" with a 
"significant justification." Id. at 597. This failing is 
particularly telling in light of the importance the 
Supreme Court accorded this factor in Ga/i?113
15. The Supreme Court has recently held that 
a district judge has the authority to deviate 
from the Guidelines in a particular crack cocaine 
case because the Guidelines range for these offenses 
was based on "the mandatory minimum sentences set 
in the 1986 Act, and did not take account of 'empirical 
data and national experience.' "Kimbrough. 128 S.Ct. 
at 575 (citation omitted). The Guidelines involved in 
Pugh's case, however, do not exhibit the deficiencies 
the Supreme Court identified in Kimbrough. First, the 
Guidelines range is derived at least in part from the 
early Parole Guidelines, rather than directly derived 
from Congressional mandate. See, e.g., Revised Draft 
Sentencing Guidelines 72 (Jan.1987) ("The serious 
nature of th[e] offense [of transporting, receiving, or 
trafficking in material 
involving 
the 
sexual 
exploitation of a minor] is reflected in the 
enhancement for the distribution of material depicting 
minors under age twelve. The amount of enhancement 
reflects the time specified by the parole guidelines."). 
Second, there is no indication that either the 
Guidelines range or the policy statement involved in 
Pugh's sentence suffers from any criticisms like those 
Kimbrough identified for 
the 
crack 
cocaine 
Guidelines. There, the Supreme Court found that the 
Sentencing Commission itself had "reported that the 
crack/powder disparity produces disproportionately 
harsh sanctions." Kimbrough. 128 S.Ct. at 575. Here, 
the Sentencing Commission has not made any similar 
statements; rather, the Guidelines and policy 
statement are based in part upon Congress's 
longstanding concern for recidivism in such cases, see 
sun at , and even Pugh's expert admitted that no 
one, including Pugh, presents "no" risk for recidivism. 
Fifth. because the district court did not impose a 
substantial term of supervised release, the sentence did 
not adequately reflect the need to "protect the public 
from further crimes of the defendant." 18 U.S.C. 
,553(alaWC). The district court brushed aside 
consideration of this purpose of sentencing-aimed at 
Page 15 
incapacitation-by simply concluding that it was 
"convinced that I will never see you again." 
As Congress has found and as we have discussed, 
child sex offenders have appalling rates of recidivism 
and their crimes are under-reported. See Allison. 447 
F.3d at 405.406. Yet because the district court did not 
impose any custodial sentence on Pugh-not even one 
day-by law it could not impose any term of supervised 
release. Seel8 U.S.C.A. 6 3583(8) (a "defendant 
[may] be placed on a term of supervised release after 
imprisonment"); U.S.S.G. 6 5D1.1. United States'. 
Chavez. 204 F.3d 1305. 1312-1313 (11th Cir.2000). 
And while the district court imposed some conditions 
on Pugh through probation (e.g., continued mental 
health treatment, registering as sex offender, and 
random visits), Pugh's compliance with those 
conditions will be monitored for only 5 years. F1416
This period of monitoring is extremely light for a child 
pornography offender. Had even a short term of 
imprisonment been imposed by the district court, Pugh 
could have been monitored for a substantial period of 
time, including the possibility of supervised release 
for the rest of his life, as permitted by the statutory 
penalties, 18 U.S.C. 6 358314 and recommended by 
the Sentencing Commission. "17
16. In Galt the Supreme Court held that 
"[o]ffenders on probation are ... subject to 
several standard conditions that substantially 
restrict their liberty." 128 S.Ct. at 595 We do not 
dispute this, but note that Gall did not involve a child 
pornography offense, which involves different 
considerations for supervised release, including the 
characteristics associated with child pornography 
offenders and the Guidelines recommendation of a life 
term of supervised release for such offenders. 
17. Moreover, even in cases not involving 
child sex offenses, supervised release is a 
stronger tool than probation. See United States I 
Reese. 71 F.3d 582. 587.88 (6th Cir.1995) ("There is 
an inherent difference between probation and 
supervised release. When probation is revoked for a 
violation, the rules set forth in 18 U.S.C. 6 3565 limit 
the term of resentencing to the term allowable under 
the original offense.... By contrast, a violation of 
supervised release may result in a cumulative 
punishment 
that 
exceeds 
the original prison 
sentence."). 
Despite the district court's strong conviction that 
Pugh would not suffer from recidivism, the resulting 
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sentence does not provide a sufficient mechanism to 
monitor Pugh for a lengthy time, and thus protect the 
public from any future crime, as contemplated in la 
U.S.C. 6 3553141(2NQ. This omission is particularly 
striking, since Pugh himself agreed to a lifetime of 
supervised release. EN" 
18. On this note, we also disagree with 
Pugh's suggestion that the district court 
appropriately relied on his "self-motivated 
rehabilitation" like the district court did in Gall. In 
Gall, the offender completely stopped committing the 
offending conduct years before his arrest; here, at best, 
Pugh unsuccessfully sought treatment for an adult 
pornography addiction prior to his arrest but 
nonetheless did not 
stop downloading child 
pornography. We add that it is unclear how a related 
Section 3553(a) factor-"the need ... to provide the 
defendant with needed ... medical care "18 U.S.C. 
3553(a)(21101-was furthered by the sentence the 
district court imposed. Presumably Pugh could be 
subject to longer-term treatment had a substantial term 
of supervised release been imposed. 
Sixth, and finally, the sentence did not adequately 
reflect "the need to avoid unwarranted sentence 
disparities among defendants with similar records who 
have been found guilty of similar conduct." 18 U.S.0 
8 3553(0161. While the district court found Pugh to be 
at "the low end of the spectrum of possession," noting 
that the situation was "quite different from those I 
normally see," it nonetheless did not adequately 
explain how Pugh's non-custodial sentence avoided 
profound disparities with other similarly situated 
defendants. 
Indeed, we have typically treated child sex 
offenses as serious crimes, upholding severe sentences 
in these cases. See e.g. United States' Mauldin. 224 
f. Aoo'x 915 (11th Cir.2007) (unpublished) (affirming 
78-month sentence and life term of supervised release 
for possession of child pornography). United Stalest 
Hodnett. 210 F. App'x 949 (11th Cir.2006) 
(unpublished) (affirming 360-month sentence and life 
term of supervised release for receipt, distribution, a
possession of child pornography). United States 
Thrift. 
205 
F. 
ADD'x 
816 (11th Cir.2006) 
(unpublished) (affirming 97-month sentence and life 
term of supervised release for use of intend to entice 
a minor to engage in sexual activity), cert. denied,127 
S.O. 2143 (20071. 
We have in some instances affirmed downward 
variances in these kinds of cases, but in each of them, 
substantial prison sentences had been imposed. See, 
e.g., McBride. 2007 WL 4555205 (affirming 
84-month 
sentence 
for distribution of child 
pornography where Guidelines called for 151-188 
months). United States' Bohannon. 476 F.3d 1246 
(11th Cu.)r (affirming 120-month sentence for use of 
intemet to entice minor into sexual activity where 
Guidelines called for 135-168 months), cert. 
denied,127 S.Ct. 2953 (2007); United States I Gray 
453 F.3d 1323 ( I 1 th Cir.2006) (per curiam) (affirming 
72-month 
sentence 
for distribution of child 
pornography where Guidelines called for 151-188 
months). United States' Halsetna. 180 F. App'x 103 
(11th Cir.2006) (unpublished) (affirming 24-month 
sentence for possession of child pornography where 
Guidelines called for 57-71 months). And in a similar 
case, another court upheld a substantial sentence, even 
though the defendant possessed many fewer images 
than Pugh. See United States, Nikonova. 480 F.3d 
371. 377 (5th Cir.) (affirming a 31-month sentence 
where the defendant possessed 13 images and the 
district court noted that, although the defendant may 
be "atypical," her offense fell "within the heartland of 
cases involving possession of child pornography"), 
cert. deniedj 28 S.Ct. 163 (2007). 
In fact, Pugh has not cited and we cannot find a 
single case involving child pornography in which any 
court has upheld a non-custodial sentence like this 
one. FN19 Rather, appellate courts have consistently 
overturned zero-imprisonment or other sharply 
downward-varying sentences in such cases on the 
ground that the resulting sentences were unreasonably 
lenient. See e.g. United States, Fink. 502 F.3d 585, 
586 (6th Cir.20071 (vacating sentence of 70 months' 
imprisonment and five years' supervised release); 
Goff 501 F.3d at 262 (vacating sentencing of four 
months' imprisonment and three years' supervised 
release). Goldberg. 491 F.3d at 668 (vacating sentence 
of one-day imprisonment and 10 years' supervised 
release). United States I Borho. 485 F.3d 904 (6th 
Cir.2007) (vacating 
sentence of 72 
months' 
imprisonment and 5 years' supervised release). Perrin. 
478 F.3d at 672 (vacating sentence of 60 months' 
imprisonment and 10 years' supervised release); 
Annendark. 451 F.3d at 352 (vacating sentence of 
five years' imprisonment and no supervised release). 
While these cases do not drive our decision, they do 
support the conclusion that the district court's 
probationary sentence will result in unwarranted 
disparities, further suggesting that the sentence 
imposed was unreasonable. 
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19. We have located only one case in which 
an appellate court has upheld a non-
imprisonment sentence for a child pornography 
END OF DOCUMENT 
offense-but in that unpublished decision of the Fifth 
Circuit, which incidentally lacks any detailed 
discussion, one rr of house arrest was imposed. See 
United States 
Polito. 215 F. Atnix 354 (5th 
Cir.2007). 
IV. 
Taking the Section 3553(a) factors as a whole as 
well as the district court's findings and calculus, we 
are constrained to conclude that Pugh's probationary 
sentence was unreasonable, and that the district court 
abused its discretion in imposing it. We recognize that 
the appropriate weight given to each of the factors 
cannot be calibrated with a slide rule and that the 
district court properly has been accorded great 
discretion in determining how to weigh those factors. 
However, the district court must give some weight to 
the factors in a manner that is at least loosely 
commensurate with their importance to the case, and 
in a way that "achieve[s] the purposes of sentencing 
stated in & 3553(a)."Martin. 455 F.3d at 1237. Where 
it does not, and instead "commit[s] a clear error of 
judgment in weighing the § 3553(a) factors by arriving 
at a sentence that lies outside the range of reasonable 
sentences dictated by the facts of the case," we must 
remand for resentencing. McBride. 2007 WL 
4555205, at '3 (internal quotation marks omitted). 
Indeed, if we could not say so here, we would come 
perilously close to holding that appellate review is 
limited to procedural irregularity, so long as the 
district court says it has reviewed all of the Section 
3553(a) factors. We do not read Supreme Court 
precedent as having so eviscerated appellate review at 
the same time that it has mandated the appellate courts 
to continue to review sentences for reasonableness. 
We, therefore, VACATE Pugh's sentence, and 
REMAND the case to the district court for further 
review and resentencing. In so doing, we do not 
suggest what that sentence should be. We hold only 
that a sentence of probation, without a single day in 
jail or any period of supervised release is an 
unreasonable one. 
VACATED and REMANDED. 
C.A.11,2008. 
U.S. I. Pugh 
F.3d --, 2008 WL 253040 (C.A.11 (Ala.)) 
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Wesdaw. 
435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 F.3d 1100) 
H 
U.S. I. Clark 
C.A.9 (Wash.),2006. 
United States Court of Appeals,Ninth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Michael Lewis CLARK, Defendant-Appellant. 
No. 04-30249. 
Argued and Submitted June 6, 2005. 
Filed Jan. 25, 2006. 
Background: Defendant was convicted in the 
United States District Court for the Western Dis-
trict of Washington, Robert S. Lasnik, J., 315 
F.Supp.2d 1127, of violating the Prosecutorial 
Remedies and Other Tools to End the Exploitation 
of Children Today Act's (PROTECT Act) prohibi-
tion against traveling in foreign commerce to en-
gage in a sexual act with a person under 18 years of 
age, and he appealed. 
Holdings: The Court of Appeals, McKeown, 
Circuit Judge, held that: 
(I) extraterritorial application of PROTECT 
Act did not violate principles of international law; 
(2) application of PROTECT Act to defendant 
did not violate due process; and 
(3) enactment of PROTECT Act was a valid 
exercise of Congressional authority under the For-
eign Commerce Clause. 
Affirmed. 
Ferguson, Circuit Judge, filed dissenting opinion. 
West Headnotes 
III Criminal Law 110 413=.18 
110 Criminal Law 
110I Nature and Elements of Crime 
Page I 
110k12 Statutory Provisions 
110k18 k. Extraterritorial Operation. Most 
Cited Cases 
Extraterritorial application of Prosecutorial Remed-
ies and Other Tools to End the Exploitation of Chil-
dren Today Act's (PROTECT Act) prohibition 
against traveling in foreign commerce to engage in 
a sexual act with a person under 18 years of age did 
not violate principles of international law; provision 
was exclusively targeted at extraterritorial conduct, 
and jurisdiction was based solely on a defendant's 
status as a U.S. citizen. 18 U.S.C.A. § 2423(c). 
121 Commerce 83 C=82.6 
83 Commerce 
8311 Application to Particular Subjects and 
Methods of Regulation 
8311(J) Offenses and Prosecutions 
83k82.5 Federal Offenses and Prosecu-
tions 
83k82.6 k. In General. Most Cited Cases 
Infants 211 of:=B 
211 Infants 
21111 Protection 
211k13 k. Protection of Health and Morals. 
Most Cited Cases 
Two-month lapse in time between defendant's most 
recent transit between the United States and Cam-
bodia and his arrest did not preclude application of 
Prosecutorial Remedies and Other Tools to End the 
Exploitation of Children Today Act's (PROTECT 
Act) prohibition against traveling in foreign com-
merce to engage in a sexual act with a person under 
18 years of age; government was not required to 
prove that the illicit sexual conduct took place 
while the defendant was literally still traveling. 18 
U.S.C.A. § 2423(c). 
131 Constitutional Law 92 e=”1560 
92 Constitutional Law 
92XXVII Due Process 
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435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 F.3d 1100) 
92XXVH(H) Criminal Law 
92XXVII(H)4 Proceedings and Trial 
92k4560 k. Extraterritorial Application 
of Penal Laws. Most Cited Cases 
(Formerly 92k259) 
Criminal Law 110 C=18 
110 Criminal Law 
1101 Nature and Elements of Crime 
110kI2 Statutory Provisions 
110kI8 k. Extraterritorial Operation. Most 
Cited Cases 
Application to defendant of Prosecutorial Remedies 
and Other Tools to End the Exploitation of Chil-
dren Today Act's (PROTECT Act) prohibition 
against traveling in foreign commerce to engage in 
a sexual act with a person under 18 years of age, on 
basis of his sexual activities with children in Cam-
bodia, did not violate Due Process Clause; defend-
ant's American citizenship provided a sufficient 
nexus 
with 
the 
United 
States. 
U.S.C.A. 
Const.Amend. 5; 18 U.S.C.A. § 2423(c). 
141 Commerce 83 C**4 
83 Commerce 
831 Power to Regulate in General 
83k2 Constitutional Grant of Power to Con-
gress 
83k4 k. Commerce with Foreign Nations. 
Most Cited Cases 
Commerce 83 C=11(1) 
83 Commerce 
831 Power to Regulate in General 
83k2 Constitutional Grant of Power to Con-
gress 
83k8 Exclusive or Concurrent Powers of 
Congress and the States 
83k8( I ) k. In General; Application of 
State or Federal Law. Most Cited Cases 
Congress's power over foreign commerce is exclus-
ive and plenary. U.S.C.A. Const. Art. 1, § 8, cl. 3. 
151 Commerce 831582.6 
Page 2 of 20 
Page 2 
83 Commerce 
8311 Application to Particular Subjects and 
Methods of Regulation 
8311(J) Offenses and Prosecutions 
83k82.5 Federal Offenses and Prosecu-
dons 
83k82.6 k. In General. Most Cited Cases 
Infanta 211 e:=)12(8) 
211 Infants 
21111 Protection 
21Ik 1 2 Constitutional and Statutory Provi-
sions 
211k 1 2(3) Validity 
211k I 2(8) k. Crimes Against Infants. 
Most Cited Cases 
Enactment of Prosecutorial Remedies and Other 
Tools to End the Exploitation of Children Today 
Act's (PROTECT Act) prohibition against traveling 
in foreign commerce to engage in a sexual act with 
a person under 18 years of age was a valid exercise 
of Congressional authority under the Foreign Com-
merce Clause. U.S.C.A. Const. Art. I, § 8, cl. 3; 18 
U.S.C.A. § 2423(c). 
*1101 Michael Filipovic, Assistant Federal Public 
Defender, Vicki W.W. Lai, Research and Writing 
Attorney, Federal Public Defender's Office, Seattle, 
WA, for the defendant-appellant. 
John McKay, United States Attorney, Helen J. 
Brunner, John J. Lulejian, Susan B. Dohnnaim, As-
sistant United States Attorneys, Seattle, WA, for 
the plaintiff-appellee. 
Appeal from the United States District Court for the 
Western District of Washington;*1102 Robert S. 
Lasnik, District Judge, Presiding. D.C. No. CR-
03-00406-L. 
Before HUG, FERGUSON, and McKEOWN, Cir-
cuit Judges. 
Opinion by Judge McKEOWN; Dissent by Judge 
FERGUSON. 
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McKEOWN, Circuit Judge. 
In this appeal we are confronted with a ques-
tion of rust impression regarding the scope of Con-
gress's power under 
the Foreign Commerce 
Clause.FN1 At issue is whether Congress exceeded 
its authority "to regulate Commerce with foreign 
Nations," U.S. Const. art. I, § 8, cl. 3, in enacting a 
statute that makes it a felony for any U.S. citizen 
who travels in "foreign commerce," i.e. to a foreign 
country, to then engage in an illegal commercial 
sex act with a minor. 18 U.S.C. § 2423(c). We hold 
that Congress acted within the bounds of its consti-
tutional authority. 
FN1. We commend both counsel for their 
excellent and comprehensive briefing on 
this novel issue. 
Congressional invocation of the Foreign Com-
merce Clause comes as no surprise in light of grow-
ing concern about U.S. citizens traveling abroad 
who engage in sex acts with children. The United 
States reiterated its commitment to quelling sexual 
abuse abroad by signing The Yokohama Global 
Commitment 
2001, 
available 
at 
ht-
tp://www.unicef.org/events/ 
yokohama/out-
come.html (last visited Dec. 29, 2005), which was 
concluded at the Second World Congress Against 
the Commercial Sexual Exploitation of Children. 
The Commitment welcomes "new laws to criminal-
ize [child prostitution], including provisions with 
extra-territorial effect." Id. Notably, in an explanat-
ory statement attached to the Commitment, the 
United States emphasized that it "believes that the 
Optional Protocol [on child prostitution] and [the 
International Labour Organization's Convention 
No. 182 regarding child labor] provide a clear start-
ing point for international action concerning the 
elimination of commercial sexual exploitation of 
children." Id. 
Under the Commerce Clause, Congress has 
power "[t]o regulate Commerce with foreign Na-
tions, and among the several States, and with the 
Indian Tribes." This seemingly simple grant of au-
thority has been the source of much dispute, al-
though very little of the controversy surrounds the 
Page 3 of 20 
Page 3 
"foreign Nations" prong of the clause. Cases in-
volving the reach of the Foreign Commerce Clause 
vis-a-vis congressional authority to regulate our cit-
izens'
ire
conduct abroad 
few and far between. See. 
e.g., United States 
Bredimus, 352 F.3d 200, 
207-08 (5th Cir.2003 (affirming conviction under 
18 U.S.C. § 2423(b), which reaches any person who 
travels in foreign commerce "for the purpose of 
engaging in illicit sexual conduct)"' It is not so 
much that the contours of the Foreign Commerce 
Clause are crystal clear, but rather that their scope 
has yet to be subjected to judicial scrutiny. 
FN2. As discussed in § IV(A), the cases 
arise primarily under the dormant Foreign 
Commerce Clause and invoke the interplay 
between state and federal authority. 
The Supreme Court has long adhered to a 
framework for domestic commerce comprised of 
"three general categories of regulation in which 
1
Congress is authorized 
engage under its com-
merce power,"Gonzales 
Reich, 545U.S. I, ---, 
125 S.Ct. 2195, 2205, 16 L.Ed.2d I (2005):(I) the 
use of the channels of interstate commerce; (2) the 
instrumentalities of interstate commerce, or persons 
or things in interstate commerce; and (3) activities 
that substantially affect interstate commerce. See 
also United States I Ili 
514 U.S. 549, 558-59, 
115 S.Ct. 1624, 1 1 L. .2d 626 (1995); Reich, 
125 S.Ct. at 2215 (Scalia, J., concurring) (noting 
that *1103 for over thirty years, "our cases have 
mechanically recited that the Commerce Clause 
permits congressional regulation of three categor-
ies"). This framework developed in response to the 
unique federalism concerns that define 
ion-
al authority in the interstate context. 
514 
U.S. at 557, 115 S.Ct. 1624 ("[T]he scope o 
e in-
terstate commerce power 'must be considered in the 
1
light of our d 
system of government ....' ") 
(quoting NLRB 
Jones & Laughlin Steel Corp., 
301 U.S. 1, 37, 
S.Ct. 615, 81 L.Ed. 893 (1937)). 
No analogous framework exists for foreign com-
merce. 
Further distinguishing the two spheres "is evid-
ence that the Founders intended the scope of the 
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3
foreign commerce power to be ... greater" as co - 
pared with interstate commerce. Japan Line, Ltd. . 
County of Los Angeles, 441 U.S. 434, 448, 99 S. . 
1813, 60 L.Ed.2d 336 (1979). This expansive latit-
ude given to Congress over foreign commerce is 
sensible given that "Congress' power to regulate in-
terstate commerce may be restricted by considera-
tions of federalism and state sovereignty," whereas 
"[i)t has never been suggested that Congress' power 
to regulate foreign commerce could be so limited." 
Id. at 448 n. 13, 99 S.Ct. 1813. 
Adapting the interstate commerce categories to 
foreign commerce in specific contexts is n
 an in-
surmountable task. See, e.g., United States I Cum-
mings, 281 F.3d 1046, 1049 n. 1 (9th Cir.2002) 
(analyzing constitutionality of the International Par-
naping Act, 18 U.S.C. § 1204(a), under 
three-category 
approach). 
At 
times, 
owever, this undertaking can feel like jamming a 
square peg into a round hole. Instead of slavishly 
marching down the path of grafting the interstate 
commerce framework onto foreign commerce, we 
step back and take a global, commonsense approach 
to the circumstance presented here: The illicit sexu-
al conduct reached by the statute expressly includes 
commercial sex acts performed by a U.S. citizen on 
foreign soil. This conduct might be immoral and 
criminal, but it is also commercial. Where, as in 
this appeal, the defendant travels in foreign com-
merce to a foreign country and offers to pay a child 
to engage in sex acts, his conduct falls under the 
broad umbrella of foreign commerce and con-
sequently within congressional authority under the 
Foreign Commerce Clause. 
BACKGROUND 
Michael Lewis Clark, a seventy-one year old 
U.S. citizen and military veteran, primarily resided 
in Cambodia from 1998 until his extradition in 
2003. He typically took annual trips back to the 
United States and he also maintained real estate, 
bank accounts, investment accounts, a driver's li-
cense, and a mailing address in this country. Fol-
lowing a family visit in May 2003, Clark left 
Page 4 of 20 
Page 4 
Seattle and flew to Cambodia via Japan, Thailand, 
and Malaysia. He was traveling on a business visa 
that he renewed on an annual basis. 
While in Cambodia, Clark came to the atten-
tion of Action Pour Les Enfants, a 
non-
governmental organization whose mission is to res-
cue minor boys who have been sexually molested 
by non-Cambodians. Clark came under suspicion 
when street kids reported to social workers that he 
was molesting young boys on a regular basis. The 
organization in turn reported him to the Cambodian 
National Police. In late June 2003, the Cambodian 
police arrested Clark after discovering him in a 
Phnom Penh guesthouse engaging in sex acts with 
two boys who were approximately ten and thirteen 
years old. He was charged with debauchery. The 
United States government received permission from 
the Cambodian government to take jurisdiction over 
Clark. 
*1104 U.S. officials-assisted by the Cambodian 
National Police and the Australian Federal Police-
conducted an investigation that led to Clark's con-
fession and extradition to the United States. As part 
of the investigation, the younger boy told authorit-
ies that he had engaged in sex acts with Clark be-
cause he needed money to buy food for his brother 
and sister. The older boy stated that Clark had hired 
him in the past to perform sex acts, on one occasion 
paying five dollars. Other young boys whom Clark 
had molested reported that they were paid about 
two dollars, and Clark stated that he routinely paid 
this amount. Clark acknowledged that he had been 
a pedophile since at least 1996, "maybe longer," 
and had been involved in sexual activity with ap-
proximately 40-50 children since he began travel-
ing in 1996. 
Upon his return to the United States, Clark was 
indicted under the provisions of the newly-enacted 
Prosecutorial Remedies and Other Tools to End the 
Exploitation of Children Today Act of 2003 
("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 
650 (2003).1" He pled guilty to two counts under 
18 U.S.C. § 2423(c) and (e) 1" 
but reserved the 
right to appeal his pre-trial motion to dismiss based 
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on constitutional, jurisdictional, and uatutory con-
struction grounds. See United States I Clark 315 
F.Supp.2d 1127 (W.D.Wash.2004) (order denying 
Clark's motion to dismiss). 
FN3. Although Clark was reportedly the 
first person charged under the PROTECT 
Act's extraterritorial provisions, see Blaine 
Harden, Veteran Indicted on Sex Charges; 
Man Is First Charged Under Protect Law's 
Provision on Tourism, Wash. Post at A5 
(Sept. 25, 2003), the U.S. Immigration and 
Customs Enforcement's "Operation Predat-
or" reports that thirteen arrests had been 
made 
as of July 
19, 
2005, 
http:// 
www.ice.gov/graphics/ 
news/ 
factsheetilstatistics.htm (last visited Dec. 
29, 2005). 
FN4. Subsection (e) provides that an at-
tempt or conspiracy to violate § 2423(c) 
shall be punishable in the same manner as 
a completed violation. 
On appeal, Clark's challenge centers on the 
constitutionality of § 2423(c). Adopted in 2003 as 
part of the PROTECT Act, § 2423(c) provides as 
follows: 
(c) Engaging in illicit sexual conduct in foreign 
places. Any United States citizen or alien admitted 
for permanent residence who travels in foreign 
commerce, and engages in any illicit sexual con-
duct with another person shall be fined under this 
title or imprisoned not more than 30 years, or both. 
This provision was first proposed as part of the 
Sex Tourism Prohibition Improvement Act of 2002, 
H.R.Rep. No. 107-525 (2002). The "Constitutional 
Authority Statement" in the Report accompanying 
this Act expressly identified the Commerce Clause, 
article I, section 8 of the Constitution, as the au-
thority for the legislation. Id. at 5. The purpose of 
the bill was "to make it a crime for a U.S. citizen to 
travel to another country and engage in illicit sexual 
conduct with minors." Id. The provision was not 
enacted, however, until it was added to the PRO-
TECT Act the following year. SeeH.R.Rep. No. 
Page 5 of 20 
Page 5 
108-66, at 5 (2003) (Conf.Rep.), as reprinted in 
2003 U.S.C.C.A.N. 683. This section was incorpor-
ated verbatim into the 2003 legislation but the Re-
port on the PROTECT Act does not include the pri-
or reference to constitutional authority. 
Before the PROTECT Act became law in 2003, 
§ 2423(b) required the government to prove that the 
defendant "travel[ed) in foreign commerce, or con-
spire[d) to do so, for the purpose of engaging in " 
specified sexual conduct with a person under eight-
een years of age. Violent Crime Control and Law 
Enforcement Act of 1994, Pub.L. 103-322, 108 
Stat. 1796, Sec. 160001 *1105 (1994) (codified as 
amended at 18 U.S.C. § 2423(b)) (emphasis added). 
The PROTECT Act replaced this single section 
with new subsections (b) through (g), with the new 
subsection (b) remaining substantively the same as 
the former subsection (b). Subsection (c) is an en-
tirely new section which deletes the "for the pur-
pose of language.n" The conference report ac-
companying the PROTECT Act explains that Con-
gress removed the intent requirement from § 
2423(c) so that "the government would only have to 
prove that the defendant engaged in illicit sexual 
conduct with a minor while in a foreign country." 
H.R.Rep. No. 108-66 at 51; see a/soH.R.Rep. No. 
107-525, at 2 (same statement in report for failed 
2002 bill). Consequently, for § 2423(c) to apply, 
the two key determinations are whether the defend-
ant "travelled) in foreign commerce" and "engages 
in any illicit sexual conduct." 
FNS. Subsection (d) covers persons who 
provide ancillary services to facilitate 
travel "for the purpose of engaging in il-
legal acts; subsection (e) covers attempt 
and 
conspiracy; 
subsection 
(f) 
cross-
references the definition of "illegal sexual 
conduct" with other statutes; and subsec-
tion (g) provides a defense where the de-
fendant in a commercial sex act case reas-
onably believed that the person was 18 
years old. 18 U.S.C. § 2423(d)-(g). 
The statute defines "illicit sexual conduct" in 
two ways: First, the definition includes "a sexual 
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435 F.3d 1100 
435 F.3d 1100, 06 Cal. Daily Op. Serv. 696, 2006 Daily Journal D.A.R. 962 
(Cite as: 435 F-3d 1100) 
act (as defined in section 2246 [18 U.S.C. § 2246] ) 
with a person under 18 years of age that would be 
in violation of chapter 109A[18 U.S.C. §§ 2241 et 
seq.] if the sexual act occurred in the special mari-
time and territorial jurisdiction of the United 
States." 18 U.S.C. § 2423(1)(1). Chapter 109A, in 
turn, criminalizes various forms of sexual abuse in-
cluding, for example, aggravated sexual abuse by 
force, threat, or other means, 18 U.S.C. § 
2241(a)-(b); sexual abuse by threatening or placing 
that other person in fear, 18 U.S.C. § 2242; and 
sexual abuse of a minor or ward, 18 U.S.C. § 2243. 
These violations share the common characteristic 
that there is no economic component to the crime. 
In other words, they are non-commercial sex acts. 
In contrast, the second prong of the defmition 
covers "any commercial sex act (as defined in sec-
tion 1591[18 U.S.C. § 1591) ) with a person under 
18 years of age." 18 U.S.C. § 2423(0(2). 
"Commercial sex act," in turn, is defined as "any 
sex act, on account of which anything of value is 
given to or received by any person." 18 U.S.C. § 
1591(O(1). Clark acknowledges that his conduct 
qualifies as illicit sexual conduct, and he admitted 
in his plea agreement that he "intended to pay each 
of the boys and each of the boys expected such pay-
ment in exchange for the sexual encounter." Ac-
cordingly, it is this second "commercial sex act" 
prong that is at issue in Clark's appeal. 
ANALYSIS 
Clark does not dispute that he traveled in 
"foreign commerce," nor does he dispute that he 
engaged in illicit commercial sexual conduct. The 
challenge he raises is to congressional authority to 
regulate this conduct. In addition to his Commerce 
Clause challenge, Clark attacks his conviction on 
international law, statutory construction, and Due 
Process grounds!" In recognition of the principle 
that courts have a "strong duty to avoid constitu-
tional issues that need not be resolved in order to 
determine the rights of the parties to the case and 
consideration,"County Court of Ulster County 
Allen. 442 U.S. 140, 154, 99 S.Ct. 2213, 60 L.Ed. 
Page 6 of 20 
Page 6 
777 (1979), we begin our analysis with Clark's non-
constitutional claims. 
FN6. Clark initially raised issues related to 
his sentence but has since withdrawn this 
aspect of his appeal. 
*1106 I. SECTION 2423(C) COMPORTS WITH 
THE PRINCIPLES OF INTERNATIONAL LAW 
[I) We start with Clark's argument that extra-
territorial application of § 2423(c) violates prin-
ciples of into
 law." On de novo review, 
United States I Felix-Gutierrez, 940 F.2d 1200, 
1203-04 (9th Cir.1991), we hold that extraterritorial 
application is proper based on the nationality prin-
ciple. 
FN7. Clark's challenge is distinct from the 
more common scenario where a party chal-
lenges only the extraterritorial reach of a 
statute 
without contesting congressional 
i
auto' 
to enact the statute. See, e.g.. 
Small 
United States, 544 U.S. 385, ----, 
125 S. . 1752, 1754, 161 L.Ed.2d 651 
(2005) (holding that the phrase "convicted 
in any court" in a statute criminalizing 
firearm possession by a convicted felon, 18 
U.S.C. § 922(g)(1), does not apply to ex-
traterritorial 
convictions); 
Timberlane 
Lumber Co.' Bank of Am., 549 F.2d 597, 
608.15 (9th Cir.I976) (discussing the ex-
traterritorial reach of U.S. antitrust laws to 
activities in foreign countries), su 
eded 
by statute as stated inMcGlinchy 
Shell 
Chemical Co., 845 F.2d 80 
813 n. 8 (9th 
1 
Cir.1988); United States 
Cotten, 471 
F.2d 744, 750 (9th Cir.197 
(holding that 
a statute proscribing theft of government 
property applied extraterritorially, and that 
the "law certainly represents an exercise 
by the Government of its right to defend it-
self from obstructions and frauds"). 
The legal presumption that Congress ordinarily 
intends federal statu s to have only domestic ap-
plication, see Small 
United States, 544 U.S. 385, 
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