In U.S. v. Faris, No. 08-16336 (Sept. 23, 2009), the Court upheld the conviction and sentence of a defendant convicted of possession of child pornography, and enticing a minor to engage in sexual activity.
The Court rejected Faris’ argument that his prosecution violated the Commerce Clause. The Court pointed out that Faris used the internet, and the internet is an instrumentality of interstate commerce.
The Court also rejected Faris’ argument that the Necessary and Proper Clause did not confer authority to prosecute him. The Court noted that Congress has "substantial leeway" in how to regulate purely intrastate activity that it deems can, in the aggregate, frustrate the broader regulation of interstate economic activity.
Turning to sentencing, the Court rejected Faris’ argument that his sentence should not have been enhanced for having "influenced" a "minor," because the "minor" in his case was a law enforcement officer. The Court recognized that the applicable Guideline is scheduled to be amended on November 1, 2009, to provide that the enhancement does not apply in a case where the only minor is a law enforcement officer. However, the precedent of the Eleventh Circuit, which is contrary to this amendment, remains binding, and the Guideline amendment has no force until adopted.
