UNITED STATES of America, Plaintiff-Appellant-Cross-Appellee, v. Kelly Brenton FARLEY, Defendant-Appellee-Cross-Appellant, 607 F.3d 1294

CARNES, Circuit Judge: In the Fall of 2006, Kelly Farley was a thirty-seven-year old businessman living in Texas with a pregnant wife and five children, ranging in age from one to fourteen. His interest in families was not limited to his own, and his sexual interests extended beyond what our society and its laws will tolerate. Farley is sexually attracted to girls he described as “still innocent, but starting to bud a little,” and he wanted to have sex with a girl who was around nine to eleven years old.

Using the internet, he made contact with the mother of a child of that age and set out to persuade her not only to let him have sex with her daughter but also to join him in sexually violating the child. To reach that goal Farley engaged in a steady stream of chat room conversations, emails, and phone calls over a period of seven months with the mother, leading up to his arrival in Atlanta carrying directions to the place where he planned to rendezvous with her and her eleven-year-old daughter.

Farley’s actions led to his arrest, which led to his trial, which led to his conviction and sentence, which led to the government’s appeal of that sentence, which led to Farley’s cross-appeal of both his conviction and sentence, all of which led to this opinion. I. On October 3, 2006, Kelly Farley entered a Yahoo! online chat room called “Fetish 14,” which was devoted to the topics of incest and sexual molestation of children.

Through the chat room Farley, who lived in the Dallas area, initiated contact with “Stephanie,” whose online profile identified her as a forty-one-year-old Atlanta single mother of a ten-year-old girl. Once Stephanie accepted Farley’s invitation to chat privately, he wasted no time getting down to business. Within the first three minutes, he asked her how long she had been interested in the “room topic” and whether her involvement was “active” or merely fantasy.

He told her that “my wife would flip if she knew I was into it.” Noting that Stephanie’s profile mentioned a daughter, Farley asked if the mother ever got to “see anything.” He also asked Stephanie what her “favorite age” was, and.she answered that it was her daughter’s age, ten years old. After questioning Stephanie about how long she had been attracted to her daughter and what she did to “get looks and appease [herjself of the urge,” Farley suggested that she should arrange for her daughter to walk in on her while she was masturbating.

When she said that had happened once, Farley replied that Stephanie should have “offerfed] to show her how.” Farley confided to Stephanie that he had been “attracted to younger girls for a while.” He told her that he had twelve-year-old and ten-year-old daughters, and a fourteen-year-old son, but that he had not been “active” with them because he was afraid that his wife might find out.

He claimed, however, that there was a fourteen-year-old girl he had met online and had “[met] up with for sex.” Stephanie asked if ten was too young for him, and Farley answered “no not too young.” He then asked if the daughter “ha[s] any hair yet.” Stephanie told Farley that she wanted to find a man who could introduce her daughter to sex.

He suggested that she “set it up so that you and [me] are having sex or oral or something and [the daughter] walks in on it.” He thought that would be the easiest way to “invite her into it.” When Stephanie complained about the difficulty in finding a partner for this project, that it’s “hard to find someone 4real” because most men were “full of BS,” Farley assured her that he was “looking for real,” and that he would .take the real experience “as far as you are comfortable going.” Farley said that while he had never been with a ten-year-old girl, he had been sexually active for nearly a year with the fourteen-year-old he had met; he expressed the opinion that there was no difference between the ages from a “making it happen point of view” as long as the girl felt “comfortable and safe.” Farley told Stephanie that his name was “Kelly” and he shared details about his real job as regional vice president for a Dallas staffing company.

Stephanie told him she was “Stephanie Miller” and said that her daughter was named “Sydney.” Farley suggested he might soon visit their hometown of Atlanta on business, but expressed some concern that Stephanie might be “a cop trying to entrap me.” On October 9, 2006, Farley initiated another chat with Stephanie.

After once again assuring her that he was “for real,” Farley pressed her for details about the time her daughter had walked in and seen her masturbating — the “teaching part,” as he put it. “It will help with the environment to move to the next step,” he explained, “something that she feels is natural and fun, not like she is doing something wrong or to be embarrassed about.” Farley suggested that the girl would be more comfortable having sex with a man if her mother were also present and participating.

He assured Stephanie that he wanted to be “a part of [her] plans,” a “long term thing” and that he “would teach and watch [the child] blossom over the years.” When Stephanie asked how he envisioned it happening, Farley said that they would meet, have, dinner, go back to her place, drink some wine, and give the child a few sips. Then he and Stephanie would start “messing around,” letting the daughter watch to “make.it natural,” perhaps with a pornographic movie playing in the background.

To prepare Sydney for the experience, Farley suggested that Stephanie watch pornographic movies and let her daughter see her masturbating to them. ‘You have to be a sexual part of this,” he insisted. When Stephanie told him that Sydney was standing next to her as she typed, Farley told Sydney to “come real close” to the screen and asked her how she was enjoying her day off from school.

Told that the girl had run off giggling, Farley resumed his conversation with Stephanie and boasted, “I still have it after all these years, even with 10 year olds.” Farley then questioned Stephanie about her own childhood sexual experiences. In response to Stephanie’s story that she had sex with her stepfather at age twelve, Farley said, “I would imagine if it is done gently, lovingly and consistently it is not looked at as anything strange.” Stephanie then asked Farley what made him want a “real” experience.

Farley answered that he had been “interested in younger” for a while, “never my own, but those ages.” He said that he would like to have an ongoing relationship “with the mom’s involvement to teach, and guide ... jointly teaching her, so no secrets for her to hide or feel guilty about those kinds of things, totally open, and with no dad to worry about makes it better.” Noting that he had “a lot to lose,” Farley asked Stephanie to get a webcam so he could see her on live video during their chats and make sure that she was “real and not some cop or something.” Stephanie never hooked up a webcam, although she did send Farley a real photo of herself standing next to a nine-year-old girl.

On October 13, 2006, during another chat session, Stephanie once again asked Farley what made him want a real experience. In response, Farley described the downward arc of deviance his sexual interests had taken: It is kind of the progression of porn actually ... as a teen started looking at porn; as you look at more and more, you need harder and harder stuff to really get[ ] you going, so you go from like playboy, to penthouse, to hustler, etc., then from adult, to teen, to curious about younger.

Then I discovered chat rooms ... that is where pies and links were posted and I started seeing younger pics, then pics of younger in action, and it just got hotter and hotter ... so the natural progression is then not just wanting pics [and] vids but wanting the real thing, which le[ ]d me to teen chat rooms, then meeting a teen in person, now to this point. Farley said that he had seen “pics and vids as young as they come,” and Stephanie responded that she had seen some similar pictures online.

Farley suggested that Stephanie trade child pornography pictures with him, but he backed off when neither of them volunteered to be first to send an image. He asked Stephanie what age excited her most; she answered “9-10.” Farley said, “Yeah me too ... something about that age, still innocent, but starting to bud a little.” Farley asked Stephanie how she thought it would happen.

Stephanie said that she wanted it to be “very special,” that her daughter would be “a princess for the day”, and that if the right person “shows her everything] and it is done right things will be perfect.” Farley asked if they could talk on the phone, but Stephanie was reluctant to give him her number. Farley noted “we are both very nervous here” and suggested Stephanie was afraid he might be a “cop” who would trace her call and show up to take her away in handcuffs. He promised her he was not, and she assured him likewise. Over the next four months, Farley and Stephanie had only occasional, brief chats.

Farley worried that Stephanie had “decided [he] was a fraud” and had given up on him. He told her his real last name, and said that he hoped to visit Atlanta sometime soon and wanted to have dinner with her. When Farley and Stephanie chatted again on March 8, 2007, he told her that he had met a woman from Toronto online who was “active” with her ten-year-old daughter. He said that the woman lets her daughter see her masturbating, “lets her touch and has taught her how to rub ... herself,” and had even allowed Farley to watch the process by using a webcam.

Farley asked Stephanie if she had done anything similar with her own daughter, and suggested once again that she rent a pornographic movie and arrange for Sydney to catch her masturbating while watching it.

He advised that Stephanie should not act shocked or surprised when her daughter walked in, because “she needs to see you doing things ... before I show up and get involved.” He told Stephanie that night was the night to start: “Have her and you get in just t-shirt and panties, and when you start playing ... tell her it feels good and is natural, walk her through it by talking to her, tell her what to do, then ask her if she wants you to help her, touch her and get her to touch you.” He also suggested she get a web-cam so that she and Sydney could chat with the Toronto woman and her daughter, “letting Sydney see it’s ok and teaching her together.” On March 23, 2007, Farley was laid off from his job as Regional Vice President for the Dallas branch of Dalrada Financial Corporation.

That same day several images of child pornography were downloaded onto Farley’s laptop. Farley thereafter did part-time contract work for an affiliated company, Strategic Staffing Services, and continued to work from Dalrada’s office. During April 2007, Farley made several attempts to reach Stephanie through offline messaging. On April 25, Stephanie wrote back expressing impatience with him: “I thought you were for real .... I get the feeling you are all talk ... if [you are] not full of BS let me know.” Farley told her he had lost his job but he still hoped to make a trip to Atlanta.

On April 30, they chatted again. Farley assured her that he was not “full of crap” and would not have left so many messages for her if he was. Stephanie wanted to make sure “you and I are on the same sheet.” Farley responded, “As long as you are not a cop we are.” Farley then asked her if she had tried “the movie thing.” She said that she had watched one, and that Sydney had peeked in and asked some questions.

When he asked if Sydney had seen her masturbating yet, Stephanie told him that she had to be careful because she did not want to “freak her out.” Farley said he totally understood, “but to be natural for her she needs to see it being [done] naturally without feeling like it is something to hide or be ashamed of.

If she walked in and you were playing with yourself, you could explain that the movie and doing that makes you feel good.” Stephanie told him that Sydney had heard about masturbation from some of her friends, and Farley questioned her in detail about that, calling it “too cute.” Stephanie complained that Farley was expecting her to do all the talking.

Farley answered, “We have talked in detail in the past about how you want things to happen; we both know that we want the same thing.” Asked why he wanted to be involved in it, Farley answered, “because I want to be part of a mutual, sensual, family experience where it is open, supported, gentle, wanted.” They then exchanged telephone numbers and had a brief phone conversation in which they discussed the possibility of him visiting Atlanta.

On the same day, Farley emailed Chris Polk, owner of Strategic Staffing Services, and suggested that they arrange a business meeting with a prospective client in Atlanta sometime in the next few weeks. The Atlanta meeting was not Polk’s idea but Farley’s. On May 2, 2007, Farley initiated another chat and told Stephanie he planned to visit Atlanta in two weeks. In the meantime, Farley gave Stephanie a “homework assignment” to watch a few more adult movies with Sydney before he arrived.

He instructed her to put on a video and call Sydney in to join her; then Farley would call and talk to Sydney while she watched the pornography. Stephanie was to introduce Farley to Sydney as an “old friend” with whom she liked to do things “like she sees in the videos.” Farley suggested that they bring a camera to take pictures and “have our own home movies.” Once again, Farley expressed concern that he might be walking into a “Dateline NBC” style sting operation.

Noting that he had been unable to find any phone listing for a “Stephanie Miller” in Riverdale, the Atlanta suburb where she had told him she lived, Farley worried about “showing up for dinner with you and having Dateline there waiting for me because [of] what we have talked about.” “Let’s make a pact,” he proposed: “I promise that I am not a cop and will not bring Dateline if you do too.” On May 3, 2007, Farley called to ask Stephanie what she had told Sydney about him, and inquired if Sydney was there. Sydney then got on the phone. Farley asked her how school was going.

When Stephanie came back on, Farley asked if she and Sydney would be watching a movie that evening. On May 4, 2007, Farley took the conversation to a new low, describing to Stephanie in graphic detail what he intended to do to Sydney, who had recently had a birthday and was now eleven years old. He began their chat session on that date by asking Stephanie what had happened during the movie the previous evening.

She told him that while they watched the pornographic video she “began touching ... and rubbing her [daughter]” and that she told Sydney they were watching the video “so that she would know what was going to happen.” Farley then narrated a “dream” he had about the mother and daughter, which amounted to his step-by-step plan for how he and Stephanie would sexually molest Sydney. First, they would all three sit on the couch and watch a pornographic movie together.

As they were watching it, Stephanie would remove Farley’s clothes and while they were kissing he would rub her breasts, she would rub his penis, and then she would take the child’s hand and put it on his penis and help her “feel the real thing” while they watched the movie. When Stephanie remarked that Farley’s dream “sounds so real,” he responded “Yes, that is how I see it happening.” Farley then described how they would have the child masturbate him while he masturbated Stephanie, and then have her masturbate her mother.

After that, Farley would have the child perform oral sex on her mother after he showed her how to do it. They would, he said, “go back and forth taking turns.” Later that same day, Farley emailed Stephanie to finish his description of his “dream,” picking up where their earlier chat session had left off. He described how, after he and Sydney had performed oral sex on Stephanie, they would then tell the child that it was her turn and how good it was going to feel. The mother and Farley would take turns performing oral sex on the little girl, masturbating her, and digitally penetrating her.

Then they would have her watch closely as Farley had sexual intercourse with her mother, and after awhile the mother would place the child on Farley’s lap and help him penetrate the child and have sexual intercourse with her. That part of their session would end with mother and daughter performing fellatio on Farley. Then, as Farley described it, “we move on to round two.” The next day, May 5, 2007, Farley called Stephanie and asked if she had read his email. Farley also talked about his children’s soccer games and joked about wanting to coach eleven- and twelve-year-old girls.

He told Stephanie he would be arriving in Atlanta on the evening of May 15th. He later left her two more voicemail messages asking if she had read the email yet. On May 7, Stephanie replied to Farley’s email and asked him if the scenario it described was just a dream, or was his plan for what actually would happen when he visited. On May 9, Farley responded that he “can’t wait to see the real thing.” In a chat session, Farley told Stephanie that he had been “rock hard” while typing the email, and that she and Sydney could be his “second family.” When Stephanie asked if he was nervous, Farley responded: Very!!!

Actually scared that I am going to show up, get busted, and have to explain that to my wife and kids ____ OK, since we are on the paranoid conversation ... please assure me that I am not walking into some kind of Dateline type set up. Repeat after me: I am not a cop, I am not setting you up, I am not working under the authority of any police authority. Farley then asked Stephanie to watch another pornographic movie with Sydney before he arrived and said that he would love for Sydney to “help” her mother masturbate one more time.

Still seeking reassurance that Sydney was real, Farley asked Stephanie to send a picture of the two of them together holding a sign that said “Can’t wait to see you Kelly.” Stephanie emailed back to say that Sydney “thinks [he is] so cute” and that she was excited to know they would share the experience together. She asked Farley what they should wear. Farley emailed back the next day, May 10, and repeated his request for a picture of Sydney. He suggested that the eleven-year-old come to them meeting wearing no panties.

On May 10, 2007, Farley booked a ticket on American Airlines to fly from Dallas to Atlanta on the afternoon of May 15 and return on the afternoon of May 16, and he made a reservation for the night at the Holiday Inn on Spring Hill Parkway in Smyrna, a suburb of Atlanta. Chris Polk’s company arranged to pay for Farley’s flight, hotel, and rental car. Farley was scheduled to meet on the morning of May 16 with a prospective client at an office on Roswell Road in Marietta, another suburb of Atlanta.

On May 11, 2007, Farley emailed Stephanie and again suggested that she watch a movie with Sydney and “get her help a little more” with masturbation. He asked for Stephanie’s address so that he could go on Mapquest and plan his route from her house either to his hotel, or to his meeting the next morning, “depending on how the night goes.” In a phone call later that day, Farley asked Stephanie how much Sydney knew about what was going to happen. Stephanie responded that she had told Sydney they would be doing “what we saw in the movies” and that the eleven-year-old had asked if it would hurt.

Farley told Stephanie that was a “good question.” Farley then inquired if Sydney knew “not to tell anybody.” He asked where they should meet for dinner, and Stephanie suggested the IHOP restaurant in Riverdale. In a second phone call, Farley again expressed his fear that he would be walking into a sting operation with “TV cameras.” However, that fear did not stop him from planning further details of his visit. Farley promised he would try to book an earlier flight so that the sexual molestation of the eleven-year-old would not keep her up past her bedtime. He also suggested that they serve her some wine coolers.

Two days later, on May 13, 2007, Stephanie told Farley in an email that she had taken her daughter to Six Flags amusement park where Sydney had gotten a bad sunburn. Stephanie said the child asked her if sex would “hurt really bad,” because one of her friends had told her that it would. She asked Farley to send Sydney an email reassuring her.

On May 14, the day before his planned trip, Farley initiated a chat with Stephanie and told her to assure her daughter that “it will all be fun for everyone, and no one will do anything they don’t want.” When Stephanie again mentioned Sydney’s sunburn, Farley said they would “rub some lotion on her.” He asked if the eleven-year-old had any hair growing “down there” yet, and suggested that Stephanie shave off her own pubic hair so that she would “match” her daughter. He told Stephanie to have her camera ready.

Farley then sent Stephanie an email addressed to “Syd.” Writing directly to the eleven-year-old girl, Farley said the following: I hope your sunburn is feeling ok. I am sorry we didn’t get to talk this weekend. I am looking forward to seeing you tomorrow. We will all have a great time hanging out. Please don’t worry about anything, we will not [be] doing anything that will hurt you or that you don’t feel comfortable with. The idea is for all of us to have a really good time together and that is fun!! I am sure that you have seen what a good time those folks have on the movies, that is how we will be.

We will take pictures and laugh and share in some fun times. I hope that the sun burn is better, if it still hurts we can make sure to rub lots of lotion on it to help the pain. I understand you are not feeling well today, I hope you feel better. I am looking forward to dinner tomorrow night. If you are at home tomorrow I will try and call in the morning before I leave. Farley then sent Stephanie two more emails. Attached to one was a photograph of his face; to the other, a photograph of his penis.

In a phone conversation the following morning, Stephanie asked if “that” was “for me or for her.” Farley answered: “Both.” On the afternoon of May 15, 2007, Farley flew from Dallas to Atlanta on American Airlines flight 474 to conduct his business and to live out his dream of having sex with an eleven-year-old child and her mother. II. Of course it was not to be. The woman Farley knew as “Stephanie” was actually Detective Joanne Southerland, a Clayton County Sheriffs Office investigator and a member of the FBI’s “Safe Child” task force, who was conducting an undercover investigation into child exploitation.

She had been involved in over a hundred similar investigations, and Farley is not the first of her online correspondents to end up before this Court. See United States v. Mooney, 303 Fed-Appx. 737, 739 (11th Cir.2008) (per curiam). Law enforcement personnel recorded and preserved Farley’s chats, emails, instant messages, voicemails, and phone conversations with Stephanie. There was no “Sydney.” The voice Farley heard in what he thought was a phone conversation with the child belonged to an FBI employee speaking in a childlike voice.

As Farley had suspected out loud to “Stephanie” on seven different occasions, it was a sting operation. Still, he had single-mindedly pursued his “dream.” A When Farley’s flight landed at the Atlanta airport, the passengers were instructed to remain seated. Task force head Agent Stephen Paganucci and Agent John Robinson, along with a uniformed officer from the Atlanta Police Department, boarded the plane at 4:35 p.m. and went to Farley’s seat. They asked him for identification, told him to stand up, and handcuffed him.

Paganucci told Farley he was being detained for questioning but could not remember whether he specifically told him he was under arrest. The agents retrieved Farley’s suitcase and briefcase, led him out of the plane and into a nearby police car, and drove him to the Atlanta Police Department’s airport substation. Soon after they arrived at the substation, between 4:45 and 4:47 p.m., Agent Paganucci showed Farley an “Advice of Rights” form and read each warning out loud as Farley initialed it.

Farley acknowledged he understood that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to talk to a lawyer before questioning and during questioning, that a lawyer would be appointed for him if he could not afford one, and that if he decided to answer questions without a lawyer present, he had the right to stop answering them at any time. Farley then signed a “Waiver of Rights” on the same form, which stated that he had read the warnings and understood them, and that he was willing to answer questions without a lawyer present.

Agents Paganucci and Robinson spent about an hour and a half questioning Farley in the substation’s conference room. Farley was cuffed to his chair by one hand, but he was allowed to go to the bathroom when he asked. Paganucci testified that the questioning was “cordial” at first and then gradually got more “accusatory,” but the agents never yelled at Farley or drew their weapons. Agent Paganucci initially attempted to disguise the purpose of the questioning by telling Farley it was a national security matter.

He told Farley “there was some FBI program that picks up certain words online like terrorist, threats and things of that nature.” Paganucci may also have told Farley that the interview would last about forty-five minutes. The record does not indicate whether he made these remarks before or after he advised Farley of his rights. At some point during the interview, Paganucci falsely told Farley they were waiting on a fax from the FBI’s Dallas office. Once the questioning got underway, however, it quickly became clear that the agents were asking whether Farley had come to Atlanta to have sex with a child.

Paganucci testified that all of Farley’s statements were made after he had been advised of his rights and had waived them. According to Agent Paganueci, Farley admitted that he was the exclusive user of the Yahoo! account from which all of the emails and chats with Stephanie had originated. He told the agents that he spent two or three hours a week in sexually oriented chat rooms and had met Stephanie in one of them.

At this point, Farley did not know that “Stephanie” was really an undercover agent and apparently did not know that there was a verbatim record of all of his emails, chats, and phone conversations with her. He admitted to the agents that he had engaged in sexually oriented chats with Stephanie, but said that she had been the one pushing the idea of him having sex with her daughter. Farley claimed he had only played along with her “fantasy” because he wanted to have sex with Stephanie and insisted he had no interest in having sex with a child and did not find the idea arousing.

When the agents accused Farley of working with Stephanie to “groom” the child for sex, Farley denied it, although he admitted that he knew Stephanie had shown her daughter a pornographic video. When the agents asked him about his purported sexual relationship with a fourteen-year-old girl he had met online, Farley said he had made that up to impress Stephanie. When they asked him if they would find any child pornography on his computer, Farley admitted that he had viewed such images more than once while browsing the internet, but he insisted that he never searched for them and always deleted them after viewing.

Farley admitted sending Stephanie a picture of his penis. He said that the main purpose of his Atlanta trip was to arrange a business deal for Strategic Staffing Services, but he admitted that he had planned to call Stephanie and then meet her and Sydney at the IHOP restaurant. He told the agents he thought Sydney was twelve years old. While Agents Paganueci and Robinson were beginning their interview of Farley, other agents conducted a warrantless search of the suitcase and briefcase he had brought with him on the flight.

There was nothing of interest in the suitcase, but in the briefcase the agents found a Toshiba laptop computer and a printout of Mapquest directions from the airport to the IHOP restaurant in Riverdale where Farley had agreed to meet Stephanie and Sydney. Also in the briefcase were Mapquest directions from the airport to the hotel, and from the hotel to the next morning’s business meeting site, as well as documents for the business meeting.

Toward the end of the interview, the agents asked Farley if he would cooperate by consenting to a search of his laptop computer, his Blackberry handheld device, his T-Mobile cell phone, and his Yahoo! account. When Farley expressed concern about needing his computer for his business meeting, Agent Paganueci offered to copy whatever files he needed onto a disk for him. Farley agreed to the search and signed “Consent to Search” forms for each item.

Forensic examination of the laptop would later reveal about 100 images of children ranging from toddlers to early teens engaging in sexual activity including oral, vaginal, and anal penetration. At least 10 of these images showed girls who appeared to be the same age as “Sydney.” Most of the images had been deleted, and it was impossible to tell whether Farley had deliberately downloaded them or whether his internet browser had cached them automatically when he viewed them on a website. However, at least one image appeared to have been obtained through a file sharing program.

Some of the images bore date stamps indicating they had been saved onto Farley’s computer on March 23, 2007; for the others, date and time information could not be recovered. The laptop also contained evidence of Farley’s chats with Stephanie and electronic versions of the same Mapquest directions he had printed and brought with him to Atlanta. B. On June 12, 2007, a grand jury in the Northern District of Georgia indicted Farley on two counts.

Count One charged that on May 15, 2007, he had knowingly crossed “a State line” with intent to engage in a sexual act with a person under the age of twelve, in violation of 18 U.S.C. § 2241(c).

Count Two charged that between October 3, 2006 and May 15, 2007, Farley had used a computer connected to the internet, a facility of interstate commerce, and with it had knowingly attempted to persuade, induce, entice, and coerce a person under the age of eighteen to engage in sexual activity for which Farley could be charged with the criminal offense of child molestation under Georgia state law (O.C.G.A. § 16-6^1), in violation of 18 U.S.C. § 2422(b). He pleaded not guilty. c. Farley moved to dismiss the indictment on two grounds.

One was that the absence of an actual child made it legally impossible for him to commit the charged crimes. The district court rejected that contention because it was foreclosed by binding precedent. See United States v. Root, 296 F.3d 1222, 1227-29 (11th Cir.2002); see also United States v. Murrell, 368 F.3d 1283, 1286-88 (11th Cir.2004). The second ground of the motion to dismiss contended that Farley’s communications with “Stephanie” were protected speech under the First Amendment. The district court rejected that contention as contrary to circuit precedent. See United States v.

Homaday, 392 F.3d 1306, 1311 (11th Cir.2004). Farley also filed motions to suppress his post-arrest statements and all the evidence obtained from the search of his computer, contending that Agent Paganucci’s deceptive statements about the purpose of the questioning had rendered Farley’s Miranda waiver and consent to search involuntary. After conducting an evidentiary hearing, the magistrate judge issued a report and recommendation that the motions to suppress be denied.

The report noted that it was unclear whether Paganucci’s remark about terrorism came before or after Farley was advised of his rights, but concluded that regardless of the timing Farley’s waiver was voluntary under the totality of the circumstances. The magistrate judge reasoned that any initial misrepresentations by the agents did not affect the validity of Farley’s consent to search because he had given that consent toward the end of the interview when he was well aware of what the investigation was actually about.

Farley objected to the magistrate judge’s report and recommendations about the motions to suppress, and he requested a de novo evidentiary hearing before the district court in order to clarify the timing of Paganucci’s statements and Farley’s waiver. The district court declined to order a new evidentiary hearing and denied Farley’s motion to suppress his post-arrest statements.

Because Agent Paganucci had testified at the hearing before the magistrate judge that he could not recall the timing of his “deceptive” statements in relation to the waiver, a second round of testimony would be unlikely to clarify the matter. In any event, the district court reasoned that the timing of those statements did not matter. Even if they had occurred before Farley was advised of his rights, his Miranda waiver was knowing and voluntary under the totality of the circumstances, and all of his own statements came after that waiver.

Farley also objected to the warrantless search of his briefcase, an issue the magistrate judge had not addressed because the parties had not mentioned it at the evidentiary hearing. Because he was not yet formally under arrest and had not yet given any consent when those bags were searched, Farley argued, the search was improper and the printed Mapquest directions found in the briefcase should be excluded. Had the agents not opened the briefcase and seen a laptop inside it, they would not have known to ask him for consent to search the laptop.

Therefore, he contended that everything found on the laptop should also be excluded as “fruit of the poisonous tree.” The district court concluded that Farley had been arrested when the agents detained him on the plane and that the search of his briefcase was permissible. Therefore, the printed Mapquest directions were admissible and consent to search the laptop was validly obtained.

The government anticipated that Farley would claim at trial that he had not actually intended to have sex with a child, and it wanted to put into evidence the child pornography found on his computer to show that he had an “unhealthy or prurient interest” in sex with children. So the government gave notice that it intended to offer the child pornography from Farley’s laptop either as inextricably intertwined evidence or as extrinsic evidence of his intent under Fed.R.Evid. 404(b).

Farley responded with a motion in limine to exclude the child pornography images, arguing that their probative value was outweighed by their prejudicial impact because the government could not prove exactly how they had gotten onto his computer and because the criminal intent for a child pornography offense was not the same as the intent required for the crimes with which he was charged.

After the government indicated that it would limit its offer of the child pornography evidence to only those images depicting girls of similar age to Farley’s intended victim, the court preliminarily ruled that those images were admissible as evidence intrinsic to the charged offenses and denied Farley’s motion to exclude them. During the trial itself, when the issue arose again, the court allowed the government to introduce ten of the images. Meanwhile, Farley sought to introduce two pieces of evidence he said would help prove that he lacked any intent to have sex with a child.

He filed notice of his intent to introduce the results of a polygraph examination he had taken several months after his arrest. The examiner, hired by Farley, found no deception indicated when Farley answered “No” to the question “When you arrived at the Atlanta airport on May 15th, were you planning to engage in sexual activity with a child under the age of twelve?” Farley did not inform the government or the court about the polygraph until after being told that he had passed it.

Farley also wanted to introduce the results of an investigation by the Texas Department of Family and Protective Services, which found no evidence that he had sexually abused any of his own children. Farley argued that report was relevant because it showed he was not a pedophile. The government opposed admission of the polygraph on grounds that it was unreliable and irrelevant, and it moved in limine to exclude the Family Services report as hearsay and irrelevant.

The district court noted that it would have required a Daubert hearing before allowing a jury to hear about the polygraph, but there was not going to be a jury. Farley waived his right to a jury and requested a bench trial before the district court. The government did not object, and the district court granted the request. Since the court was going to be the factfinder, it decided to hear the government’s challenge to the scientific validity of the polygraph and the evidence about the results of the examination at the same time.

The court excluded as irrelevant the Texas Family Services report but made a finding that Farley had not molested his own children. D. Farley’s bench trial commenced on April 23, 2008, and lasted two and a half days. During it Farley conceded that he was the author of the chats and emails and that the chat transcripts were accurate, and stipulated that he had used a computer connected to the internet, a facility of interstate commerce, to communicate with Detective Southerland.

The sole issue at trial was whether Farley actually intended to have sex with the child, “Sydney,” or was merely engaging in an “internet fantasy.” Detective Southerland testified about Farley’s communications with her as “Stephanie,” going through them in chronological order and quoting them extensively. The chat transcripts, offline messages, and emails were admitted into evidence, and the recordings of the phone conversations were played for the court.

The printed Mapquest directions found in Farley’s briefcase, which showed him how to get from the airport to the IHOP restaurant in Riverdale where he was to meet Stephanie and Sydney, were also put into evidence. After defense counsel suggested in cross-examination that Southerland had been the one to steer the conversations toward sex, she clarified on redirect that when playing the “Stephanie” role she had never said anything sexual about her fictional daughter until someone with “those interests” raised the topic.

Agent Paganucci testified about Farley’s arrest and his post-arrest statements, which we have already summarized. A computer forensic examiner for the FBI testified about his examination of the laptop and introduced ten child pornography images he had found on it, images which depicted children similar in age to Sydney engaged in sexual acts. Those images were selected from a group of about 100 recovered from the laptop, showing “minor children from approximately 2 years old to early teens involved in illegal sexual contact including oral sex, vaginal and anal penetration.” The government then rested.

The court denied Farley’s Rule 29 motion for judgment of acquittal, finding that there was sufficient evidence for a reasonable factfinder to find him guilty beyond a reasonable doubt. In his own defense Farley took the stand and attempted to explain away the evidence against him. He admitted spending several hours a week in sexually themed chat rooms, but said he never met with any of his chat partners in person because what he wanted was online anonymity without any expectation of meeting “for real.” Farley explained that he went to the chat rooms to escape from the real-world pressures of job and family.

He insisted that when he met Stephanie in the “incest” room and asked her whether she was sexually active with her daughter, he was just trying to find out Stephanie’s “fantasies” so that he could play along with them. His story was that he believed Stephanie was merely engaging in online role-playing, and he assumed that she either did not have a daughter or if she did was not actually doing anything sexual with her, because “anybody can be anybody” on the internet. Even though Farley had repeatedly assured Stephanie that he was “for real,” that was just part of his act.

When he instructed Stephanie to make sure Sydney knew not to tell anyone about the molestation, he was just role-playing. Every time he expressed worry about encountering police or TV cameras, that too was just a reflection of the “taboo nature” of the fantasy, the kind of thing he thought Stephanie wanted to hear because it was the kind of thing a person who wanted to have sex with an eleven-year-old would say. Farley insisted he was not actually interested in sex with the child and that he only pretended that he was because he was attracted to Stephanie and did not want her to lose interest in him.

He felt like they had “hit it off’ and developed a real relationship; they spent a lot of time in their chats talking about things other than sex with children. However, he had no expectation of meeting her in the flesh. His true objective in the chats, he testified, was to get Stephanie to masturbate for him while he watched her on webcam — • even though he could not specifically identify any point in seven months’ worth of chat transcripts at which he had asked her to do that.

Farley admitted sending an email addressed directly to Sydney that referred to sexual activity, but said he did not think Stephanie would actually show the email to her daughter. Sending the picture of his penis was just a “spur-of-the-moment thing.” Even though Farley told Stephanie he was coming to Atlanta on the evening of May 15th, and had arranged to meet her and Sydney at the IHOP restaurant in Riverdale, he testified that he had no intention of actually showing up for their meeting.

Given that story, Farley had some difficulty explaining how the printed Mapquest directions to the restaurant had found their way into his briefcase. He admitted that he had purposely looked up the directions online, but thought he must have accidentally printed them and then accidentally grabbed them from the office printer along with a stack of other documents for his business meeting. On cross-examination Farley could not explain why, if he wanted nothing more than an anonymous online relationship, he had told Stephanie his real name and true details about his family and his job.

Nor was he able to explain why he was so attracted to a woman who told him she wanted to have sex with her own child, if he himself did not share that desire. Farley’s disavowal of sexual interest in children was undermined by evidence of his membership in online groups like “tiny puffy,” in which he had sent an email to a fellow member saying “great pics ... I would love to see more of that age,” and “kinky kids.” He also sent an email to another Yahoo! user with “pussy sex children” in the subject line.

Farley was also forced to admit he had joined a teen social networking site called “E-Spin the Bottle,” where his profile identified him as a seventeen-year-old boy named “Michael Johnson” who wanted to meet white females of “age range 13 to 17.” And he had to admit that he encouraged Stephanie to show her daughter pornographic movies and teach her how to masturbate, although he insisted he did not expect her to do it. Finally, he conceded that during the time they were communicating he could not be entirely certain Stephanie was not actually molesting a real child at his urging.

Farley presented two other witnesses in his defense. James Partin, a former executive at Dalrada, testified that the reason Farley was laid off by that company was not the charges on his company debit card for pornographic web sites. Polygrapher Mark Foster testified about his examination of Farley. Foster admitted that polygraphy was “part science, part art.” The defense then rested, and the court again denied Farley’s Rule 29 motion for a judgment of acquittal. After hearing closing arguments, the district court announced its factual findings and verdict. See Fed.R.Crim.P. 23(c).

The court started with Count Two, which charged a violation of 18 U.S.C. § 2422(b), because it felt that count was the more straightforward of the two.

The court found beyond a reasonable doubt that Farley had persuaded, induced, or enticed an individual under the age of eighteen to engage in sexual activity, or had attempted to do so, and that he had done so knowingly — “voluntarily and intentionally and not because of a mistake or accident.” The court observed that it had “very little trouble finding beyond a reasonable doubt that [he did believe] there was a real child and that this child was under the age of 18.” The court explained that Farley’s testimony that it was all a fantasy for him “does not comport with the evidence in the case,” including the fact that he had used his real name, his real job, and had given real information about this family; he had told “Stephanie” that his children played soccer and that he had been to Georgia on soccer trips with them, which was true; and he had conceded in his testimony “that the relationship had evolved into a relationship, an affair.” The court was satisfied beyond a reasonable doubt that Farley’s instruction about “how to groom the child sexually was done in anticipation of his own sexual contact with the child,” which, had it occurred, would have been a criminal offense under the laws of Georgia.

And all of this, the court repeated, had been done knowingly and willfully instead of by mistake or accident. Having found Farley guilty under Count Two, the court turned to Count One, which charged a violation of 18 U.S.C. § 2241(c). It had no problem finding that Farley had knowingly crossed the state line, which left the question of intent. The court reiterated its earlier findings that Farley believed there was an actual minor child as evidenced by the fact that he spoke to the child and sent an email to her, and also by his inquiries about the child’s physical development.

On the question of intent, the court indicated that if it had been a jury trial, the testimony of the polygraph examiner would have been excluded under the Daubert test and also because it would not be helpful to the factfinder. Instead of formally excluding that testimony, the court simply said that the polygrapher’s testimony “does not weigh heavily in my evaluation of the evidence in this case.” The court rejected Farley’s testimony that he did not intend to travel to the IHOP to meet the mother and daughter. It found his testimony to be inconsistent and not credible.

Among other things, the court asked, if Farley had not intended to meet the mother and her child why did he tell her that he was coming to Atlanta in the first place? “Paramount” to the court’s evaluation of Farley’s credibility was his implausible explanation of how the printed Mapquest directions ended up in his briefcase. The court found that story incredible and reasoned that it tainted Farley’s credibility as to the other things that he said. The court finished up its findings with the following: I found beyond a reasonable doubt that he believed there was a real person with a real child.

But I also think the evidence demonstrates that he couldn’t have known for sure whether this person was going to show up or not or what was going to happen. But based on all of the considerations, and really largely my observations of Mr. Farley on the stand, and the things that he said, the things that he testified to under oath, that it was his intent to go to Ms. Southerland, Stephanie. And I also find that had Stephanie shown up and made the child available, that it was Mr. Farley’s intent to sexually assault that child or participate in the sexual assault of that child.

And based on those findings I find, again, tragically, that Mr. Farley is guilty beyond a reasonable doubt of aggravated sexual abuse as that term has been defined, and that he is guilty of that crime, violating Title 18, United States Code,

section 2241(c). E. Because Farley’s criminal conduct took place after July 27, 2006, he faced the considerably more severe sentences for child sex offenses mandated by Congress in the Adam Walsh Child Protection and Safety Act of 2006, Pub.L. No. 109-248, 120 Stat. 587 (2006). That Act imposed a mandatory minimum sentence of thirty years for crossing a state line to have sex with a child under twelve in violation of 18 U.S.C. § 2241(c). Id. § 206. It also raised the mandatory minimum sentence for using a computer to entice a minor, in violation of 18 U.S.C. § 2422(b), from five years to ten years. Id. § 203.

The maximum sentence allowed by law for both crimes was life in prison. Id. §§ 203, 206. On June 20, 2008, the Probation Office released its Presentence Report. It advised that Farley’s base offense level was 30, to which were added four levels because the intended victim was under age twelve, and two levels because Farley used a computer. See U.S.S.G. § 2A3.1 (2006). Another two levels were added for obstruction of justice through perjury, based on the court’s finding that Farley had not testified credibly when he said he did not intend to have sex with the child. See id. § 3C1.1.

The additions gave Farley a total offense level of 38. With no criminal history, he faced a guidelines sentence range of 235 to 293 months in prison. (Without the obstruction enhancement, the offense level would have been 36 and the guidelines range would be 188 to 235 months.) As the PSR acknowledged, however, the thirty-year mandatory minimum sentence for the 18 U.S.C. § 2241(

c) conviction overrode the lower guidelines range. Farley objected to the obstruction enhancement, arguing that his polygraph proved he did not lie on the stand. F. In a letter to the court, Farley confessed he suffered from an “addiction” to online pornography and fantasy chat rooms, and claimed that he was “sickened” by what he had written in the chats. However, he insisted that he was innocent of the charges and had never intended to engage in sex with a child. Farley complained that the government was more interested in getting a conviction for a “hot topic” crime than in doing justice.

He promised the court that if it showed him mercy, he would “use this situation for good” by speaking to church groups and men’s groups about “the danger of sexual addictions and the internet.” He begged the court not to let his children grow up without a father. Farley also asked the court to consider the Texas Department of Family and Protective Services’ finding that he had not molested his children. Farley submitted to the court letters of support written by his mother and father, his aunt and uncle, and one of his six children, the nine-year old daughter.

Farley’s mother described him as “very devoted to his children and his wife,” and a “loving and very active father” who, together with his wife, had done an “amazing job” with their children. Even though she read the chats and heard the trial testimony, Farley’s mother could “not believe that [he] would ever harm anyone, especially, a child” and “still believe[d] in [her] heart” that he would not have met with Stephanie.

Nevertheless, she admitted that her son had a “serious addiction to pornography.” After “hearing all the testimony and seeing the amount of time spent in chat rooms,” she had a “better understanding” of the family’s financial problems. Farley’s mother could not understand how a thirty-year sentence could be “fair and just” for Farley, who had never harmed anyone, when murderers and rapists often got less.

Farley’s father, who admitted he had not been close to his son for many years, blamed business failures, the “pressures” of supporting five children, and criticism from in-laws for driving Farley to become a “sex addict.” He believed that his son needed professional mental health counseling to “cleanse his mind and soul,” and said that “[o]nly God and Kelly know” what Farley’s intent was when he boarded the flight to Atlanta.

Farley’s aunt and uncle sent a short letter praising him as a “good family member” and a “good member of his church.” Farley also submitted letters written to him by his nine-year-old daughter, in which she said that she loved him and missed him. Farley’s family support, however, was far from unanimous. When he flew to Atlanta to have a sexual tryst with a mother and her eleven-year-old child, Farley had left at home in McKinney, Texas his five children and a wife, who was only weeks away from delivering their sixth child.

Before the sentence hearing a year later, Farley’s wife wrote the court to give it “a clear and truthful picture of me and my kids” who were struggling to survive the economic and emotional harm that Farley had inflicted on them by committing this crime.

The fact that, while a father and husband, Farley “was also spending countless hours talking to other women and about hurting children” was “unnerving” to her, and she said that the “level of betrayal is almost more than anyone can bear.” Although his nine-year-old daughter had written to support Farley, his wife wanted the court to know that the little girl was too young to understand what her father had done, and that because of the crime he had committed the older children were angry at Farley, afraid of him, and embarrassed. His behavior had devastated the family and left them penniless.

Farley’s wife was left in such dire financial straits that she had only recently been able to file for divorce and “put other safety measures in place that I need and my children have asked me to do as well.” Farley’s mother- and father-in-law wrote to the court describing the pain he had caused his wife and children, which “goes on and on,” and urging the court to “sentence him to the full letter of the law.” His sister-in-law also wrote the court a letter describing all the hurt Farley had caused his wife and children, a letter that closed: “He is a child predator, the worst of his kind, and deserves the sentencing mandated by the two charges he’s been found guilty of.” G.

Farley submitted for the court’s consideration at sentencing the results of a confidential psychosexual evaluation that he had commissioned several months before trial, which concluded that he did not meet the diagnostic criteria for pedophilia and that he posed a low risk of re-offending. Because that report seems to have influenced the district court’s ruling on the constitutionality of imposing the § 2241(

c) mandatory minimum sentence on Farley, which is one of the issues in this appeal, we will discuss the report in some detail. Dr. Candice Osborn of the Behavioral Medicine Institute of Atlanta, who had twenty-five years of experience evaluating and treating sex offenders, interviewed Farley on September 19, 2007, and completed her report on November 16, 2007. Before speaking to Farley, Dr. Osborn reviewed Detective Southerland’s affidavit and read the chat transcripts and emails. She also reviewed Farley’s polygraph results and his own written narrative of the events leading up to his arrest. Her

summary of those events largely followed the government’s allegations, although she noted where Farley’s version of the story differed. During the interview, Farley told Dr. Osborn about the evolution of his sexual interests. He had a normal childhood and was never abused. He said that he was first exposed to pornography at age twelve or thirteen when he found a magazine in a dumpster, and learned how to masturbate at age sixteen when he saw it on an adult video. In college, he regularly looked at adult magazines and videos.

He stopped subscribing to Penthouse when his wife objected, but continued to view pornography in secret. He owned a snack-vending business in the early 1990s; one of his customers was an adult book store, and he sometimes traded snacks for pornography. He spent two or three hours a week looking at the magazines in his office, sometimes masturbating when other employees had left for the day. The magazines “expanded his horizons” about different types of sex. Farley and his wife had sex less and less frequently; he said that was her fault because she put taking care of their young children ahead of his own needs.

In 1994 or 1995, Farley discovered that he could find pornography on the internet from the computer in his office. He claimed he was mainly interested in pictures of adult heterosexual and lesbian couples. When the family moved to Atlanta in 1994, Farley discovered online chat rooms. He spent four or five hours a week in rooms dedicated to “married and flirting” and “fantasy role-playing.” One day, his wife found the chats on his computer and became very upset. They sought counseling from their pastor, who told Farley that he was being selfish and hurting his marriage.

Farley thought the pastor was “arrogant” and saw no harm in the chats. He was frustrated that his wife only wanted regular intercourse and would not “experiment” with other forms of sex. For some time after that incident, his wife regularly questioned him and checked his computer. She eventually stopped doing that, however, and Farley resumed viewing pornography and chatting online. After the family moved back to Dallas in 2005, Farley spent more and more time in sexually oriented chat rooms.

He described the chat participants as a “reverse support group” of people who were nonjudgmental and who accepted his sexual interests. Even so, he felt “guilty, dirty and angry with himself’ for his actions. He talked on the phone with a few of the women he met online. Once he met a woman in the “married women looking for sex” chat room and then met her in person for lunch, but he did not have sex with her because he felt guilty. Farley also participated in an online “role-play” where he pretended to be a college professor having sex with an eighteen-year-old student.

He joined several Yahoo! groups related to various fetishes “such as panty hose, animals, etc.” Other members of those groups would email him sexually explicit pictures, and sometimes he would have to click on a hyperlink before he could see what was in the picture. (This was Farley’s explanation for how he might have accidentally received the child pornography found on his laptop computer.) Farley claimed he had no idea that the “Fetish 14” chat room where he met Stephanie was a meeting place for pedophiles.

He knew the room’s focus was “older males with younger females,” but he thought this meant females aged eighteen to twenty-one. When Stephanie told him she was interested in ten-year-old girls, Farley played along only because he was attracted to Stephanie herself. He never considered any of it to be real, and he was “numb” to the idea of sex with a ten-year-old. Dr. Osborn administered a number of psychological tests.

The Minnesota Multiphasic Personality Inventory and the Mil-Ion Clinical Multiaxial Inventory, two tests that evaluated the subject’s personality and mental health through a series of true/ false questions, indicated that Farley did not suffer from any major psychiatric disorder. However, the test results were of “marginal validity” because Farley was defensive and “attempted to place himself in an overly positive light by minimizing his faults.” That was not unusual for someone who had been accused of criminal behavior.

Farley’s profile suggested a “veneer of sociability, maturity, and self-assurance” that cloaked a “fear of genuine autonomy” and a “deep antagonism.” The Millon test results described Farley as “alert to the thoughts of others” and therefore “able to appraise what actions will attain his ends.” He had developed a “highly adaptable lifestyle” and could “modify! ] his behavior to the desire of others.” Although it was within normal limits, Farley’s profile suggested “narcissistic personality traits.” On a “Sexual Addiction Screening” questionnaire, Farley gave answers indicating that he viewed his sexual behavior as compulsive and out of control.

The Abel Questionnaire for Men was an extensive 446-item survey about various deviant sexual behaviors, all based on self-reporting. Farley admitted to looking at transsexual and voyeuristic pornography and arranging to meet adult women for sex, but denied engaging in child molestation or any other deviant behavior, and denied having any sexual fantasies about or interest in children. The Abel test included a “cognitive distortion” component, which measured justifications and excuses frequently used by child molesters.

Farley scored 8% on this measure, which was in the low range, indicating not a high cognitive distortion. The “social desirability” subscale measured the subject’s unwillingness to admit to violations of social mores. Farley scored 65% on this measure, which might indicate an “inability or unwillingness to respond truthfully to others.” Dr. Osborn also administered a Reaction Time Assessment.

In this test the subject is shown slides of partially clothed models wearing bathing suits or underwear, who represent both sexes and different races, and who range in age from toddlers to preadolescents to mid-teens to adults. The subject is asked to self-report his sexual interest in each picture while his visual reaction time is measured objectively. Farley’s objective results showed significant interest in adult and adolescent females, and “insignificant” interest in girls under ten or in males of any age.

This was consistent with his self-reporting that he found the adult and adolescent females “mildly arousing” and the other models “highly sexually disgusting,” and was consistent with typical results for adult heterosexual males. Finally, Dr. Osborn performed a Static-99 Risk Assessment. This was not a test, but an actuarial calculation of recidivism risk based on known facts about the offense, the offender’s prior record, and the offender’s relationship with the victim. Farley scored a 1, the lowest risk category, because he had no previous offenses and his intended “victim” was not related to him.

Offenders with the same score are only 6-7% likely to be convicted of another sex offense within fifteen years of their first conviction. Based on his Static-99 score, Farley was not a “sexual predator” for purposes of Georgia’s sex-offender registration law. Dr.

Osborn concluded that Farley did not meet the diagnostic criteria for “pedophilia” as defined in the Diagnostic and Statistical Manual of Mental Disorders, because Farley did not admit having “recurrent, intense, sexually arousing fantasies, sexual urges, or behaviors involving sexual activity with a prepubescent child, over a period of at least six months.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 302.2 (4th ed. text rev. 2000) (DSM-IV TR). Dr.

Osborn reached that conclusion even though she had read seven months’ worth of chat transcripts in which Farley had repeatedly told a woman he thought was a mother that he wanted to have sex with her prepubescent child. (Apparently, a formal diagnosis of pedophilia from Dr. Osborn would not be possible unless Farley actually had sex with a child, or admitted to a psychiatrist — rather than to an undercover police officer — that he really wanted to.) Even though Dr.

Osborn was of the opinion that Farley presented a low risk of re-offending and did not meet the DSM-IV criteria for pedophilia, in light of his “extensive history of viewing pornography and accessing sexually oriented chat rooms” she recommended that he participate in a specialized sex offender treatment program. Such a program should include “odor-aversion therapy,” “satiation” to replace deviant thoughts with normal fantasies, sensitization to the consequences of his behavior, empathy for sex-abuse victims, cognitive restructuring, anger management, intimacy training, and relapse-prevention strategies. Dr.

Osborn predicted that if Farley received all of that treatment, he would not pose a significant risk to the community. She recommended: that the treatment be required as part of his supervised release; that Farley be restricted from unsupervised interaction with children other than his own, or living near places where children congregated, or coaching children’s sports; and that he be required to take periodic polygraphs and install monitoring software that would restrict his access to sexually explicit websites. H.

In his sentencing memorandum Farley asked the district court for a downward variance from the guidelines range based on his lack of criminal history, the Texas Department of Family and Protective Services’ finding that he had not abused his own children, Dr. Osborn’s conclusion that he was a low re-offense risk, and his role as sole breadwinner for his wife and six children. None of these arguments for leniency would do him any good, of course, as long as the sentencing court was bound by the thirty-year mandatory minimum imposed by 18 U.S.C. § 2241(c).

So Farley challenged the constitutionality of the mandatory minimum, contending that imposing a thirty-year sentence on him would violate the Cruel and Unusual Punishments Clause of the Eighth Amendment. He argued that thirty years was a grossly disproportionate punishment given his lack of criminal history and the fact that it turned out there was no actual child victim.

The mandatory minimum severely restricted the consideration the court could give to those or any other mitigating factors and, he asserted, the resulting sentence would be disproportionate compared to the guidelines’ recommendation and to state-law sentences for similar crimes. Farley pointed out that some states imposed mandatory mínimums as low as one year, or none at all, and if he had been prosecuted by the state of Georgia for conduct occurring entirely within that state, he would have faced a minimum sentence of only one year.

He complained that it was arbitrary for his use of a computer to require a minimum sentence of ten years and his crossing state lines to require one of thirty years. The district court ordered more briefing on the Eighth Amendment issue. In the order doing so, the court found it “informative” that another interstate travel crime, crossing state lines with intent to commit murder for hire, carried a maximum penalty of only ten years. See 18 U.S.C. § 1958(a).

The court also questioned whether Congress had really intended the harsher mandatory mínimums to apply to crimes “when no actual sexual act was carried out.” In its brief the government argued that Congress was owed great deference in legislating punishment, and pointed to the Supreme Court’s admonition in Solem v. Helm, 463 U.S. 277, 289-90, 103 S.Ct. 3001, 3009, 77 L.Ed.2d 637 (1983), that successful Eighth Amendment challenges should be “exceedingly rare” in noncapital cases.

Farley’s brief responded that the decisions cited by the government involved defendants who, unlike Farley, either molested actual children or had lengthy prior criminal records. He argued that the defendant’s criminal history, or lack thereof, is a relevant factor in weighing the gravity of the offense under Eighth Amendment proportionality analysis. See Ewing v. California, 538 U.S. 11, 29, 123 S.Ct. 1179, 1189-90, 155 L.Ed.2d 108 (2003). Inexplicably, neither party ever brought to the district court’s attention the Supreme Court’s decision in Harmelin v.

Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Because the nature and range of sentences available would be affected by its decision regarding the constitutionality of applying the thirty-year minimum sentence mandated by 18 U.S.C. § 2241(

c) to the case, the district court decided that issue before conducting a sentence hearing. In its order on the issue the court examined the legislative background to § 2241(c), noting that the

section of the Adam Walsh Act that amended § 2241(

c) was titled “Aggravated Sexual Abuse of Children” and that congressional debate on the Adam Walsh Act appeared to address only crimes involving actual aggravated sexual abuse of a child. Though acknowledging that legislative history was not a necessary part of Eighth Amendment analysis, the court still thought it significant that Congress had not engaged in a “meaningful discussion” of whether the same penalties should apply to crimes of intent or attempt that did not involve actual harm to children.

The court then compared the gravity of the offense to the harshness of the penalty, in order to determine whether Farley had made a threshold showing of gross disproportionality. See Solem, 463 U.S. at 290-91, 103 S.Ct. at 3010. The court believed that 18 U.S.C. § 3553(a)(1) required it to consider the nature and circumstances of the offense, and the history and characteristics of the defendant, as part of its proportionality analysis. It considered Farley’s lack of any criminal record or prior history of improper behavior with children, and Dr.

Osborn’s findings that Farley “was not attracted to prepubescent children,” was not a “sexual predator,” and posed a low risk of future sex crimes. The court noted that up to that point the government had not contested any of Dr. Osborn’s findings and did not seek its own psycho-sexual evaluation. Although it acknowledged the serious nature of Farley’s conduct, the court thought it “far less grave” than crimes that harmed or threatened to harm an actual child, or crimes committed by “perpetual offenders” who posed a continuing threat to the public.

The court concluded that a thirty-year sentence was “extremely harsh” and “grossly out of proportion” to Farley’s offense. Next, the court undertook a comparative analysis. See Solem, 463 U.S. at 291, 103 S.Ct. at 3010. The court noted that § 2241(

c) applied the same mandatory penalty to a wide range of criminal behavior that covered everything from actually raping a child to merely crossing a state line intending to touch a child sexually. For that reason, the court believed that the penalty was “disproportionate” as applied to the lesser criminal conduct it covered.

Other federal statutes punishing child-related sex offenses either did not impose a mandatory minimum at all, e.g., 18 U.S.C. § 2244 (sexual touching short of a sexual act), or § 2245 (murder in the course of a sex offense, which does carry a possible death sentence); or they imposed shorter mandatory minimum terms, e.g., § 2423(a) (minimum 10 years for interstate transportation of a child to engage in criminal sexual activity), § 2251(a), (e) (minimum 15 years and maximum 30 years for enticing a minor into sexual activity for purposes of producing a visual depiction), or § 2252 (minimum 5 years and maximum 20 years for distributing child pornography); or imposed the same mandatory minimum sentence for much more serious conduct, e.g., § 2251(e) (minimum 30 years when enticement of a minor results in death), or § 2251A (minimum 30 years for buying or selling a child for the purpose of producing child pornography).

The court decided that Farley’s sentence was also disproportionate when compared to the penalties for other interstate travel crimes, e.g., § 1958(a) (maximum 10 years for crossing state lines with intent to commit murder, for hire).

Other federal statutes that imposed thirty-year minimum sentences did so to punish far more dangerous conduct, such as attempting or threatening to use weapons of mass destruction, §§ 175c(c)(2) (smallpox virus), 2332g(c)(2) (anti-aircraft missiles), 2332h(c)(2) (radioactive weapons), or the use of machine guns or firearm silencers in crimes of violence or drug trafficking, § 924(c)(l)(B)(ii). Finally, the court was convinced that the thirty-year sentence was disproportionate when compared to state-law sentences for attempted child sex crimes.

In most states, the maximum sentences available for such attempts ranged from as low as 3 years to as high as 30 years. Georgia, the location of the intended victim and site where the sexual abuse would have taken place, would impose a minimum of 1 year and a maximum of 10 years; Farley’s home state of Texas would impose a maximum of 20 years. See O.C.G.A. §§ 16-6-4, 16 — 4—6(b); Tex. Penal Code §§ 12.33, 22.011, 15.01.

A few states made no distinction between attempts and completed crimes and therefore imposed heavier penalties, but the statutes doing so applied only when there was sexual intercourse with a child, not sexual acts “short of intercourse.” The court noted that when it convicted Farley it had determined only that he intended to engage in a “sexual act” with a child, not necessarily that he intended intercourse. For all of those reasons, the court concluded that the thirty-year mandatory sentence was grossly disproportionate to Farley’s § 2241(

c) offense and disproportionate in comparison to other sentences, and therefore uneonsti- tutional as applied to him. On the same day as the sentence hearing, the government filed a motion for reconsideration of the court’s ruling. That motion launched a thorough attack on Dr. Osborn’s opinions. It pointed out that her report had acknowledged that Farley’s “inability or unwillingness to respond truthfully” called into doubt some of his test results.

The government argued that the Reaction Time Assessment was not scientifically reliable and that its result here was obviously wrong because Farley’s- conduct proved that he was interested in sex with a prepubescent girl. The Static-99 assessment of recidivism risk was flawed, the government insisted, because it only counted prior or subsequent offenses if they resulted in convictions, even though most incidents of sexual abuse go unreported and offenders often admit to committing many more crimes than they were convicted for.

Also, the Static-99 assessment was developed in the pre-internet era and its applicability to online offenders is unclear. See United States v. Mcllrath, 512 F.3d 421, 424-25 (7th Cir.2008) (discussing limitations of the Static-99). The government argued that Dr. Osborn’s conclusion that Farley is not a sexual predator was not supported by any data or test results, and that it was contradicted by his actual conduct and the crimes for which he had been convicted. I.

As part of its effort to get the court to change its ruling on the constitutionality of the thirty-year mandatory minimum sentence as applied to Farley, the government called Dr. Osborn as a witness at the sentence hearing. She conceded that while the Reaction Assessment Test had passed Daubert review in some jurisdictions, it also had been rejected in others.

The government brought out that the coding manual for the Static-99 assessment included a disclaimer stating that it had only “moderate predictive accuracy” and did not incorporate all the factors that might be relevant to a “wide-ranging risk assessment.” Dr. Osborn admitted that and the fact that she had not mentioned that disclaimer in her report. She also admitted that the recidivism percentages for different Static-99 scores were merely group estimates, not a direct prediction of an individual offender’s risk.

The original data on which those percentages were based predated the internet, although the current manual does discuss how to apply the Static-99 to online offenders. The government challenged Dr. Osborn’s conclusion that Farley was not a “sexual predator.” The Association for the Treatment of Sexual Abusers, a professional organization to which Dr. Osborn belonged, defined “sexually predatory acts” as acts directed toward strangers or toward victims with whom the offender has established a relationship primarily for the purpose of victimization. Asked whether she agreed with this definition, Dr.

Osborn answered that the term “sexual predator” was defined differently in every jurisdiction and said that she followed Georgia’s sex offender ' registration system which based it on the offender’s Static-99 score. Asked why Farley’s cultivation of an online relationship with a woman for the purpose of molesting her daughter did not fit the ATSA’s definition of a “sexually predatory act,” Dr.

Osborn said that she could not “measure intent.” When pressed on this point, she conceded that Farley’s conviction established his intent to have sex with the child when he went to Atlanta, but she could not say whether he already had that intent when he first started chatting with Stephanie. These assertions by Dr. Osborn were in defense of her refusal to say that Farley was a “sexual predator” under the ATSA definition, which only applies to one who establishes a relationship “for the primary purpose of victimization,” rather than exploiting an existing relationship for that purpose.

The fact of Farley’s conviction did not change Dr. Osborn’s assessment, because she had been aware of the facts alleged by the government when she wrote her report.

Even if Farley intended to have sex with an eleven-year-old girl, she thought that did not necessarily mean he was sexually interested in children because “individuals can sexually molest children for a number of reasons other than having a significant sexual interest in children.” She did not explain what those other reasons might be, or why someone motivated by them would pose less future danger to children than would a more typical sexual abuser of children.

Likewise, she insisted that the presence of child pornography on Farley’s computer did not necessarily indicate that he had a significant sexual interest in children. Dr. Osborn stood by her conclusions that Farley was not sexually interested in children, was not a sexual predator, and posed a low risk of re-offending. The government again asked the court to reconsider its constitutional ruling insofar as it had relied on Dr. Osborn’s findings. The court declined, saying that it had found her report “helpful, [but] not conclusively so” and had relied on other factors as well.

With the thirty-year mandatory minimum out of the picture, the court proceeded to consider the guidelines and the sentencing factors under § 3553(a). The court was “uncomfortable” with using the obstruction enhancement in U.S.S.G. § 3C1.1 to punish a defendant for exercising his constitutional right to testify, and thought it debatable whether Farley’s lie about the printed Mapquest directions was sufficiently material to be perjury.

However, that lie was important to the court in assessing Farley’s credibility, which in turn was important to determining his intent, and for that reason the court did apply the obstruction enhancement. Farley asked for “a reasonable sentence below the guideline range,” based on his lack of criminal history, the findings in Dr.

Osborn’s report, and Farley’s record as a “good father” to his children who was “very active in their lives” and “involved with their after-school activities.” In response to a question from the government, the court acknowledged that it had received the letter from Farley’s wife, but said that what the letter expressed “is Mrs.

Farley’s emotional response to this and her observations about this, and not necessarily anything about the evidence in the case.” The government asked for a sentence within the guidelines, arguing that a severe sentence was needed for deterrence because so many abuse incidents were never reported; that Congress had treated this crime seriously because children were uniquely vulnerable; and that the internet made the problem worse by allowing people like Farley to find others who shared their deviant interests and gi

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