Defendant-Appellant James Plotts pleaded guilty to one count of receiving child pornography over the Internet in violation of 18 U.S.C. § 2252(a)(2), and one count of criminal forfeiture in violation of 18 U.S.C. § 2253(a)(3). The district court sentenced Mr. Plotts to an eighty-seven-month prison term, to be followed by five years of supervised releаse. As a condition of his supervised release, the district court ordered Mr. Plotts to cooperate in the collection of his DNA, as required by 18 U.S.C. § 3583(d) (“the DNA Act”). Mr. Plotts filed a timely notice of appeal on November 19, 2002. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.
I. Background
On appeal, Mr. Plotts first argues that the district court erred in construing U.S.S.G. § 2G2.2(b)(4) to require a mandatory, rather than discretionary, five-level sentence enhancement. Mr. Plotts also argues that the DNA Act is unconstitutional, because it exceeds Congress’s power under the Commerce Clause of the Federal Constitution.
II. Discussion
A. Enhancement for prior convictions under § 2G2.2(b)(4)
We first address Mr. Plotts’s claim that the district court incorrectly interpreted § 2G2.2(b)(4) to mandаte, rather than permit, a five-level increase in his sentence. “The district court’s interpretation of the sentencing guidelines is a legal question subject to
de novo
review.”
United States v. Castro-Rocha,
Section 2G2.2(b)(4) of the Sentencing Guidebnes reads, “If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increasе by 5 levels.” U.S.S.G. § 2G2.2(b)(4) (2002). Appbcation Note 2 provides, “[i]f the defendant engaged in the sexual abuse or exploitation of a minor at any time ... and subsection (b)(4) does not apply, an upward departure may be warranted.” Id., Appbcation Note 2. Considering the interplay of these provisions, the district judge ruled that subsection (b)(4) requirеd, rather than permitted, a five-level increase to Mr. Plotts’s sentence.
On appeal, Mr. Plotts argues that reading § 2G2.2(b)(4) in conjunction with Ap-pbcation Note 2 indicates that the Sentencing Commission intended § 2G2.2(b)(4) to permit, but not require, a five-level increase. Mr. Plotts reasons that subsection (b)(4) permits, rather than requires, such an increase because Appbcation Note 2 makes clear that instances will exist in which a defendant will have abused another child, and yet a subsection (b)(4) increase will not apply. Thus, Mr. Plotts concludes that subsection (b)(4) cannot be a mandatory requirement if situations wbl exist in which a judge will not apply it. Mr. Plotts adds that, becausе the subsection is open to differing interpretations, we should fobow the rule of lenity, which requires courts to interpret ambiguous statutes in favor of criminal defendants.
In light of the plain language of subsection (b)(4), however, we find Mr. Plotts’s suggested interpretation unper
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suasive. We interpret the Sentencing Guidelines “as if they were a statutе or court rule.”
United States v. Gay,
A plain reading of subsection (b)(4) shows that it mandates a five-level sentence enhancement for qualified offenders. Its language could not be more clear: “If the defendant engaged in a pattern of activity involving the sexual abuse or exploitation of a minor, increase by 5 levels.” U.S.S.G. § 2G2.2(b)(4). Moreover, where the Guidelines vest judgеs with discretion, as Mr. Plotts argues subsection (b)(4) does, they generally do so explicitly.
See, e.g.,
U.S.S.G. § 5k2.1 (“If death resulted [from defendant’s crime], the court
may
increase the sentence ....”) (emphasis added). Because the Guidelines do not employ permissive language in subsection (b)(4), the rules of statutory construction compel the conclusiоn that the Sentencing Commission intended it to require a mandatory, rather than discretionary, five-level increase for qualifying cases.
See Universal Const. Co., Inc. v. Occupational Safety & Health Review Comm’n.,
Moreover, we see no conflict between a mandatory interpretation of subsection (b)(4) and Application Note 2. Admittedly, the Note does indicate that instances will exist in which a defendant will have abused another child, and yet a subsection (b)(4) increase will not apply. This does not trouble us, however, because as noted by the district court, such a scenario would оccur, for instance, when a defendant has engaged in only a single previous act of sexual abuse, which would not qualify as a “pattern of activity.” See U.S.S.G. § 2G2.2, Application Note 1 (“ ‘Pattern of activity involving the sexual abuse or exploitation of a minor’ means any combination of two or more separate instances of ... sexual abuse ....”) (emphasis added). Thus, Application Note 2 indicates nothing more than that such scenarios, even though not technically qualifying for a five-level increase under subsection (b)(4), could nevertheless qualify for upward departure. As such, we see no conflict between the mandatory increase for a pattern of activity in subsection (b)(4) and the second Application Note’s recognition that certain cases will not qualify for a subsection (b)(4) enhancement, even though they may merit an increased sentence. We thus reject Mr. Plotts’s proffered interpretation.
Finally, Mr. Plotts argues that the rule of lenity requires us to interpret subsectiоn (b)(4) in his favor. As we have often stated, however, the rule of lenity only applies when there is a “grievous ambiguity or uncertainty in the language and structure of the act.”
United States v. Wilson,
B. Constitutionality of the DNA Act
We next address Mr. Plotts’s argument that the DNA Act is unconstitutional. “We review challenges to the constitutionality of a statute
de novo.” United States v. Dorris,
Mr. Plotts argues that the DNA Act is unconstitutional for three reasons. He contends that the Act violates the Fourth Amendment, contravenes the separation of powers doctrine, and exceeds Congress’s authority to legislate under the Commerce Clause. Mr. Plotts advanced these arguments before we announced our decision in
United States v. Kimler,
Mr. Plotts’s Commerce Clause challenge tо the DNA Act merits further attention.
1
Pointing to the Supreme Court’s recent decisions in
United States v. Lopez,
In respоnse, the government argues that the DNA Act is a valid exercise of Congress’s power to regulate “things in interstate commerce.” The government reasons that because many of the DNA samples taken pursuant to the Act will travel in interstate commerce, the Act is constitutional even though the regulation under the Act is noneconomic in nature.
We find it unnecessary to review the Act’s constitutionality under either proposed theory. Whether the DNA Act is properly construed as a civil sanction 2 or a law enforcement tool 3 (an issue that we do not reach today), we find that the Act is a legitimate exercise of congressional power under the Necessary and Prоper Clause. 4
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“So that the Constitution ‘be not a splendid bauble,’ the framers of our government inserted the Necessary and Proper Clause into the Constitution to ‘remove all doubts respecting the right to legislate on that vast mass of incidental powers which must be involved in the constitution.’ ”
United States v. Sabri,
The Supreme Court “long ago rejected the view that the Necessary and Proрer Clause demands that an Act of Congress be
‘absolutely
necessary’ ‘to the exercise of an enumerated power.’ ”
Jinks v. Richland County, South Carolina,
[W]e think the sound construction of the constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be сarried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.
M’Culloch v. Maryland,
17 U.S. (4 Wheat) 316, 421,
First, we apply these principles to the DNA Act construed as a civil sanction for the violation of a valid federal criminal law. The Court has held “Congress may impose penalties in aid of the exercise of any of its enumerated powers.”
Sunshine Anthracite Coal Co. v. Adkins,
As other courts of appeals have noted, Congress’s discretion in this domain is vast. “Congress has a discretion as to what sanctions shall be imposed for the enforcement of the law and this discretion is unlimited so long as the method of enforcement does not impinge upon some other constitutional prohibition.”
Rodgers v. United States,
The scope of the legislative body’s power [to set penalties] may be expressed as follows: ‘Subject only to constitutional limitations, such as those prohibiting cruel and unusual punishment, excessive fines, the enactment of ex post facto laws, the imposition of double jeopardy, and those guaranteeing equal protection *879 of the laws, due process of law, etc., the legislature may fix the punishment for crime as it sees fit. Its power is practically unlimited; it may take property, liberty, or life, in punishment for an infraction of the law, so long as it does not in so doing infringe or violate any of the guaranties secured to all citizens by the Constitution.’ Chandler v. Johnston,133 F.2d 139 , 142 (9th Cir.1943).
Applying this framework, we conclude that the DNA Act is a necessary and proper sanction to a valid criminal law. First, as we have already established, the Commerce Clause empowers Congress to criminalize the receipt of child pornography over the Internet — the crime to which Mr. Plotts pleaded guilty.
See Kimler,
Given Mr. Plotts’s failure to present any viable argument that the DNA Act “impinge[s] upon some other constitutional prohibition,”
Rodgers,
These same constitutional principles mandate that if the DNA Act is best construed, not as a sanction, but as a law enforcement tool, then the Act is a law necessary and proper to the Executive’s constitutionally delegated law enforcement powers. First, as stated above, the crime to which Mr. Plotts pleaded guilty constitutes a valid exercise of Congress’s Commerce Clause powers.
See Kimler,
This conclusion is consistent with both the letter and spirit of the Constitution. Chief Justice Marshall, writing in
M’Culloch,
noted that the Necessary and Proper Clause vests the federal government with the right “to enforce the observance of
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law, by punishing its infraction.”
M’Culloch,
Finally, the DNA Act bears a rational relationship to the Executive’s power to enforce validly еnacted federal criminal laws.
See Edgar,
Thus, whether the DNA Act, properly construed, is a civil sanction, an aid to law enforcement, or both, we hold that the Act is a constitutional exercise of legislative authority under the Necessary and Proper Clause.
III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
. Although this Commerce Clause argument was raised by the partiеs in
Kinder
as well, we declined to address the issue at that time because it was raised for the first time on appeal.
Kimler,
.
As the DNA Act only applies to persons convicted of enumerated criminal sexual offenses and acts as a deterrent to future crime, arguably, it could be construed as a civil sanction.
See, e.g., United States v. Ward,
. The legislative history of the DNA Act supports the view that the Act, properly construed, is a law enforcement tool. See H.R.Rep. No. 106-900(1), at 10 (2000).
. In passing the DNA Act, Congress relied on its authority to legislate under the Necessary and Proper Clause in conjunction with its power to regulate interstate commerce and the nation's military forces, as well аs its general legislative power over the District of Columbia. See H.R.Rep. No. 106-900(1), at 16.
. It is true that the DNA Act is not a criminal punishment in and of itself.
See United States v. Sczubelek, 255
F.Supp.2d 315, 325 (D.Del.2003). Nevertheless, Congress has the power to impose nonpunitive sanctions for the violation of criminal statutes.
United States v. Ward,
. "CODIS” is an acronym for Combined DNA Index System.