Sims claims his conviction in Count Three should be reversed because the Government failed to prove that the images at issue depicted real children. He also asserts that his convictions under Counts One and Two should be reversed because they allege impossible acts.

A. Images involving "real children"

As a threshold matter, we must determine the nature of the burden of proof involved in this offense. The statute Sims was convicted under penalizes any person who "knowingly transports . . . in interstate . . . commerce by any means including by computer . . . any visual depiction, if the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and such visual depiction is of such conduct." 18 U.S.C. § 2252(a)(1). "Minor," in turn, "means any person under the age of eighteen years." Id. § 2256(1).

We agree with Sims that this statue requires the Government to prove, as an element of the offense, that the images at issue depict real minors engaged in sexually explicitly conduct--as opposed to virtual images of such conduct that do not depict actual children. This conclusion is evident from the face of the statute and is further supported by the Supreme Court's decision in Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002).

In Free Speech Coalition, the Court held that the Government can prohibit non-obscene child pornography only to achieve "the State's interest in protecting the children exploited in the production process." Id. at 240, 250 (citing New York v. Ferber, 458 U.S. 747, 758 (1982)). Because no real children are used in production of virtual child pornography, which instead uses youthful-looking adult actors or computer-generated images, virtual child pornography is not "speech that itself is the record of sexual abuse." Id. at 250. Therefore, the Court held that a statute prohibiting images that only appeared to depict minors or merely conveyed the impression of depicting minors was unconstitutionally overbroad.⁽⁴⁾ Id. at 258 (invalidating 18 U.S.C. §§ 8(B), (D) (2000)). Although this same statute is not at issue in this case, the Court's reasoning supports our conclusion that the Government must prove beyond a reasonable doubt that real children are depicted in the images giving rise to a § 2252(a)(1) prosecution.

In this appeal, the parties dispute precisely how the Government must meet this burden. Sims argues that the Government must either (1) identify the actual child victim in the depiction or (2) prove, presumably through expert testimony, that the images were not computer generated.

However, our cases since Free Speech Coalition have consistently held that juries can review the images themselves to determine whether real children are depicted. Indeed, in United States v. Kimler, 335 F.3d 1132 (10th Cir.), cert. denied, 540 U.S. 1083 (2003), we considered a defendant's challenge to his conviction under the same statute at issue here on the ground that Free Speech "requires either direct evidence of the identity of children in the proscribed images or expert testimony that the images depicted are those of real children rather than computer generated 'virtual' children." Id. at 1140. The Government had introduced only the e-mails and images retrieved from the defendant and his computer. Id. at 1135-36. We concluded:

Free Speech Coalition, did not establish a broad, categorical requirement that, in every case on the subject, absent direct evidence of identity, an expert must testify that the unlawful image is of a real child. Juries are still capable of distinguishing between real and virtual images; and admissibility remains within the province of the sound discretion of the trial judge.

Id. at 1142.

Although in Kimler we were specifically reviewing only for plain error, Kimler's underlying conclusion that the content of an image in many cases can speak for itself and suffice to prove that real children are depicted has been affirmed and applied in several subsequent cases. E.g., United States v. Riccardi, 405 F.3d 852, 870-71 (10th Cir. 2005) (experts not always necessary to assist juries in determining unidentified images depict actual minors); United States v. Cervini, 379 F.3d 987, 993 n.4 (10th Cir. 2004) (juries can determine "based on the image alone and without expert evidence, that the image is actual"); United States v. Harms, 371 F.3d 1208, 1213 (10th Cir. 2004) (explaining that "where no evidence suggests that the images are anything other than real, the government need offer no supporting evidence beyond the images themselves").⁽⁵⁾

Therefore, we hold that the Government has the burden of proving beyond a reasonable doubt that the images at issue in a § 2252 prosecution depict actual minors. However, this does not necessarily require expert testimony or identification of the actual child victims. See Kimler, 335 F.3d at 1142. Instead, juries often will be able to distinguish between real and virtual images, and "where no evidence suggests that the images are anything other than real, the government need offer no supporting evidence beyond the images themselves." Harms, 371 F.3d at 1213.

With this analysis of the Government's burden in mind, we turn to the issues of the instant case. On appeal, Sims argues (1) that there was insufficient evidence of "real children" in his case and (2) that the jury was given an incorrect instruction as to this element.⁽⁶⁾

1. Sufficiency of the evidence

Sufficiency of the evidence is a legal issue that we review de novo. United States v. Dashney, 117 F.3d 1197, 1202 (10th Cir. 1997). However, we will not reverse a jury verdict unless no jury, presented with the evidence introduced at trial together with the reasonable inferences to be drawn therefrom, could find the defendant guilty beyond a reasonable doubt. Id.

Our review of this issue is significantly hampered by the fact that Sims selected only two of the e-mails, and the two sets of images attached to those e-mails for our review of the sufficiency of the evidence on Count Three. The fact that Sims did not include all of the evidence in the record for our review is "virtually fatal" to his claim that there was insufficient evidence below. Kimler, 335 F.3d at 1138.

Sims points out that the images he did designate are the same images the district court relied on when it found "substantial" evidence that real children were involved in Count Three and therefore denied Sims's motion for a judgment of acquittal on that count. However, we review a denial of a judgment of acquittal de novo in the light most favorable to the government and therefore are not bound only to rely on the images the district court used. See Riccardi, 405 F.3d at 870.

Based only on the secondhand descriptions of the evidence at trial, which is all that has been provided us, we are more than convinced a reasonable jury could have inferred from the images, and from Sims's statements regarding those images, that they depicted real children.

In Count One, Sims was convicted for attempting to coerce and entice a minor to engage in sexual acts in violation of 18 U.S.C. § 2422(b). In Count Two, Sims was convicted for traveling interstate for the purpose of engaging in sexual acts with a minor in violation of 18 U.S.C. § 2423(b). There is no dispute both of these counts specifically involved "Kate," the fictitious 12-year-old persona assumed by Michael Walker, an adult male, and later the FBI. Sims argues that because Kate does not exist, he could not be convicted of violating either statute because there was no actual minor involved, only adult men who "communicated extensive fantasy with Walker misrepresenting . . . age and gender."

Initially, we see nothing impossible about traveling with a specific purpose, which the jury found beyond a reasonable doubt he did. Therefore, we reject Sims's claim as to Count Two as meritless. See United States v. Han, 230 F.3d 560, 562-63 (2d Cir. 2000) (discussing nature of offense).

Moreover, as to his Count One conviction for attempting to entice a minor, "[f]actual impossibility is generally not a defense to criminal attempt because success is not an essential element of attempt crimes." United States v. Hankins, 127 F.3d 932, 934 (10th Cir. 1997). We agree with our sister circuits that this general rule applies to the case at bar--that is, it is not a defense to an offense involving enticement and exploitation of minors that the defendant falsely believed a minor to be involved. United States v. Root, 296 F.3d 1222, 1227 (11th Cir. 2002); United States v. Farner, 251 F.3d 510, 512-13 (5th Cir. 2001); United States v. Meek, 366 F.3d 705, 717 (9th Cir. 2004). Therefore, we affirm Sims's convictions on these counts.

1. Sentencing

The Supreme Court's decision in United States v. Booker, 543 U.S. ----, 125 S.Ct. 738 (2005), has fundamentally changed the way defendants are sentenced. However, even after Booker, district courts must still consult and take into account the Guidelines when sentencing. United States v. Doe, 398 F.3d 1254, 1257 n.5 (10th Cir. 2005). Moreover, when assigning sentences outside of the Guidelines-authorized range, district courts "should also continue to apply the Guidelines departure provisions in appropriate cases." United States v. Sierra-Castillo, 405 F.3d 932, 936 n.2 (10th Cir. 2005).

Here, we consider a pre-Booker sentence. "[W]e review legal questions de novo and we review any factual findings for clear error, giving due deference to the district court's application of the guidelines to the facts." Doe, 398 at 1257; see also United States v. Souser, 405 F.3d 1162, 1165 (10th Cir. 2005).

This case raises several sentencing issues. Both Sims and the Government challenge the calculation of Sims's offense level and the district court's decisions regarding departures. In addition, Sims claims the court erred in assessing a $10,000 fine. Finally, Sims alleges the district court committed constitutional and non-constitutional Booker error. Ultimately, we agree with the Government that the district court erred in applying acceptance of responsibility adjustment and in departing on the basis of aberrant behavior. Therefore, we reverse and remand for resentencing. Given this disposition, we need not address any of Sims's Booker claims. See, e.g., Doe, 398 at 1257 n.5 & 6; United States v. Cano-Silva, 402 F.3d 1031, 1039 (10th Cir. 2005).

1. Calculation of Guidelines range
1. Acceptance of responsibility

On cross-appeal, the Government argues that the district court erred in granting Defendant a three-level acceptance of responsibility adjustment. The district court found "that the defendant's confession at the time of the arrest . . . is sufficient to establish acceptance of responsibility."

However, the application note to the acceptance of responsibility guideline provides that this "adjustment is not intended to apply to a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt." U.S.S.G. § 3E1.1, appl. n.2. There are, however, "rare situations" where a defendant may "demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial" such as "where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct)." Id. There, "a determination that a defendant has accepted responsibility will be based primarily upon pre-trial statements and conduct." Id.

Our cases make equally clear that acceptance of responsibility adjustments after trial are very rare. See United States v. Wooten, 377 F.3d 1134, 1145-46 (10th Cir. 2004); United States v. Salazar-Samaniega, 361 F.3d 1271, 1280-82 (10th Cir. 2004). Indeed, in the one case in which we approved the practice, the defendant "admitted to all the conduct with which he was charged" but "simply disputed whether his acknowledged factual state of mind met the legal criteria of intent" required by the applicable statute. United States v. Gauvin, 173 F.3d 798, 806 (10th Cir. 1999). To the contrary, where the defendant argued there was insufficient evidence to prove the factual element, the right to claim an acceptance of responsibility adjustment is forfeited. Salazar-Samangiega, 361 F.3d at 1281.

In this case, Sims did contest an essential factual element of the crime; therefore, an acceptance of responsibility adjustment is not available here. Although Sims responds on appeal that he went to trial to preserve First Amendment issues relating to the lack of evidence that the images at issue depicted real children, as well as certain "substantive constitutional issues . . . including the denial of several pre-trial motions," we are not convinced even this motivation would distinguish Sims's case from Salazar-Samangiega. Moreover, it is clear Sims did contest his factual innocence as to Counts One and Two. He argued that his conversations with "sweetthingforyou16" were nothing but sexual fantasy, his purpose for traveling to Missouri was a business meeting, and he was trapped and provoked.

This is not the rare situation in which an acceptance of responsibility adjustment is available after a full jury trial. Because this clearly affected the district court's selection of the sentence imposed, we reverse and remand for resentencing. See Williams v. United States, 503 U.S. 193, 203 (1992).

1. Grouping

Next, Sims challenges the court's "grouping"of Sims's multiple counts in a manner that resulted in a two-level increase from an offense level of 31 to 33.⁽⁸⁾ His essential arguments are that the district court erred by not grouping all of his counts together based on a single, shared harm to society in general and in creating two separate groups for attempting to entice both Sue and Kate when these girls were in fact the product of a single imagination and sexual conduct with Sue, 16, would not have been "prohibited."⁽⁹⁾

As to this first argument, we disagree with Sims that the only victim of his offenses was society. The guideline itself provides that society-at-large is the victim only where "there are no identifiable victims (e.g., drug or immigration offenses . . . )." U.S.S.G. § 3D1.2, appl. n.2. Here, Sims attempted to engage in sexual acts with specific minors, and if Sue and Kate had "been available, they, rather than society in general, would have been harmed." United States v. Butler, 92 F.3d 960, 963-64 (9th Cir. 1996). We agree with the Ninth Circuit in Butler that fictitious children, used as part of an undercover sting operation, may be treated as separate victims for grouping purposes.

This conclusion is bolstered by the commentary to U.S.S.G. § 2G1.1, which has been amended since Sims's offense conduct to expressly define the victim of an enticement offense to "include an undercover law enforcement officer." U.S.S.G. § 2G1.1, appl. n.1; see also id. at app. C, amend. 592 (2001 manual) at 1074, 1083 (making amendment effective November 1, 2000). Although Sims argues this amendment is a substantive change that cannot be applied to him without violating the Ex Post Facto Clause, see United States v. Swanson, 360 F.3d 1155, 1166 (10th Cir. 2004), we disagree. In its reasoning statement for Amendment 592, the Commission did not discuss this addition to § 2G1.1 specifically but did say, in the context of a very similar addition in § 2A3.2, that several definitions were added "including clarifying that 'victim' includes an undercover police officer who represents to the perpetrator of the offense that the officer was under the age of 16 years." U.S.S.G., app. C, amend. 592 at 1082 (emphasis added).

In addition, we have already found another aspect of Amendment 592, which the Commission described as "clarif[ying] the meaning of the term 'item' . . . [and] adopt[ing] the holding of all circuits that have addressed the matter that a computer file qualifies as an item for purposes of the enhancement" to be clarifying. United States v. Thompson, 281 F.3d 1088, 1092-93 (10th Cir. 2002) (quotation omitted). As in Thompson, here the effect of Amendment 592 is to create a guideline consistent with the existing precedent in Butler and to revise a commentary note rather than a guideline. In addition, the Commission has characterized it, at least in the explanation of a parallel change in § 2A3.2, as "clarifying." Therefore, we agree with the district court that the victims for the groups here at issue in Count One were the fictitious girls, not society at large.

As to Sims's alternative argument that his conduct as to Count One should not have resulted in separate groups for Sue and Kate, we find little merit.⁽¹⁰⁾ Sims asserts that Sue and Kate were products of the same imagination and sexual conduct with a 16-year-old would not have been "prohibited."

We reject the idea that two fictitious victims from a single undercover operation must be treated as a single victim for grouping purposes. This is inconsistent with the reasoning of Butler, 92 F.3d at 963-64, which permitted three fictitious minor identities to be grouped as three separate victims.

We also reject Sims's argument that sexual conduct with 16-year-old Sue, as she was presented in the e-mail and instant message exchanges, would not have been prohibited. Prohibited sexual conduct is defined as "any sexual activity for which a person can be charged with a criminal offense" and includes "the production of child pornography." U.S.S.G. § 2G1.1 (cross-referencing to definition at § 2A3.1, appl. n.1). Although Sims asserts that the age of consent to sexual relations in the federal jurisdiction is 16, see 18 U.S.C. § 2243(a), the Guidelines definition is not so limited. Sims could have been charged with a multitude of offenses had he engaged in sexual conduct with Sue--including Missouri's second degree statutory rape offense. See Mo. Stat. Ann. § 566.034 (penalizing anyone over 21 having sex with someone under 17). Therefore, we find no error in the court's grouping in this case.

1. Departure issues

The district court refused to depart on the grounds of diminished capacity or based on a combination of discretionary factors pushed by Sims. However, the court did depart down nine levels on the basis of aberrant behavior. Both sides appeal.

1. Jurisdiction

We have no jurisdiction to review a district court's "discretionary decision to deny a motion for downward departure on the ground that a defendant's circumstances do not warrant the departure." Sierra-Castillo, 405 F.3d at 936. Instead, our review extends only to "the very rare circumstance that the district court states that it does not have any authority to depart from the sentencing guideline range for the entire class of circumstances proffered by the defendant." United States v. Brown, 316 F.3d 1151, 1154 (10th Cir. 2003).

Here, Sims sought a departure on a combination of discretionary factors including victim misconduct, the likelihood of abuse in prison, and a combination of factors including Sims's unlikelihood of his recidivism, job loss, and age. The district court concluded a discretionary departure was not warranted on these grounds. Because the court clearly knew it had authority to depart on these grounds but simply elected not to do so in this case, we cannot entertain these issues on appeal.

On the other hand, in denying the diminished capacity departure, the district court explained that Sims was "not qualified, and is therefore, ineligible for a departure based on diminished capacity, because [Sims's] offense conduct involves a serious threat of violence. The Court views this fact as disqualifying it from permitting a reduction based on diminished capacity." Therefore, we have jurisdiction to review this specific denial of a departure. See, e.g., United States v. Mitchell, 113 F.3d 1528, 1535-36 (10th Cir. 1997).

1. Diminished capacity

The diminished capacity policy statement permits a sentence below the applicable guideline range if the defendant suffered from a significantly reduced mental capacity. U.S.S.G. § 5K2.13. "However, the court may not depart below the applicable guideline range if . . . the facts and circumstances of the defendant's offense indicate a need to protect the public because the offense involved actual violence or a serious threat of violence." Id.

Upon Defendant's motion for a departure based on diminished capacity in this case, the district court noted that "the defendant has established by a preponderance of the evidence that his dementia significantly impaired his mental abilities." However, the district court believed Sims was ineligible for such a departure because the "offense involved actual violence or a serious threat of violence."

Section 5K2.13 does not define which offenses, or what offense conduct, involve actual violence or a serious threat of violence. However, in United States v. Constantine, we found it obvious that a threat of violence was "inherent" in a conviction for possession of a firearm, and that the diminished capacity guideline was therefore inapplicable in that case. 263 F.3d 1122, 1126 (10th Cir. 2001). Other potentially violent crimes to which this bar has been applied include bank robberies, threatening communications, and kidnapping. See Andrew M. Campbell, Annotation, Downward Departure under § 5K2.13 of United States Sentencing Guidelines, 128 A.L.R. Fed. 593 §§ 20-24.

We have found no "clear or obvious error" where a district court determined that both enticing a minor and traveling for the purpose of engaging in sexual acts with a minor are crimes of violence under the definition in 18 U.S.C. § 16. United States v. Johnson, 183 F.3d 1175, 1179 (10th Cir. 1999). The Sixth Circuit has also held that enticing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction is a crime of violence under U.S.S.G. § 4B1.2 because it presents a serious potential risk of physical injury. United States v. Champion, 248 F.3d 502, 506 (6th Cir. 2001). Moreover, the commentary for § 2A3.1, the guideline Sims was sentenced under for Count Two (traveling with intent to engage in sexual conduct with a minor), specifically states: "Sexual offenses addressed in this section are crimes of violence. Because of their dangerousness, attempts are treated the same as completed acts of criminal sexual abuse."⁽¹¹⁾ Id. § 2A3.1, appl. n.5.

Based on this, we easily agree with the district court that Sims's offenses included a serious threat of violence. Therefore, a departure based on diminished capacity is not permissible under the guidelines.

1. Aberrant behavior

Finally, we consider the district court's decision to depart downward nine levels on the basis of aberrant behavior.⁽¹²⁾ The guideline provides that "[a] sentence below the applicable guideline range may be warranted in an extraordinary case if the defendant's criminal conduct constituted aberrant behavior. . . . 'Aberrant behavior' means a single criminal occurrence or single criminal transaction . . . without significant planning[,] . . . of limited duration[, and that] represents a marked deviation by the defendant from an otherwise law-abiding life." U.S.S.G. § 5K2.20 & appl. n.1. The commentary specifically include a defendant's "record of prior good works" and "motivation for committing the offense" as proper circumstances to consider in departing on these grounds. Id. at appl. n.1. However, the departure requires more than just the absence of a prior criminal record.  United States v. Benally, 215 F.3d 1068, 1074 (10th Cir. 2000).

In deciding to depart here, the district court emphasized Sims's (1) medical condition, (2) long history of living an "exemplary" law-abiding life, (3) significant support from family and friends, (4) prior history of close relationships with children without any sexual abuse reports, and (5) continued good behavior subsequent to his arrest. However, the Government asserts that Sims is not qualified for such a departure because he distributed pornographic images on the Internet for almost a year and spent months planning his trip to Missouri to meet Sue and Kate.

Certainly, we can agree with the district court's finding that Sims's criminal behavior represented "a marked deviation by the defendant from an otherwise law-abiding life." However, we simply cannot decipher how Sims's well-planned, detailed scheme over the course of several months to entice and rendevous with minor girls, as well as what seems to be repeated distribution of child pornography, was a "single criminal occurrence or single criminal transaction . . . without significant planning [and] of limited duration." In cases with similar facts, courts have not permitted such a departure.  E.g., United States v. Orrega, 363 F.3d 1093, 1097-98 (11th Cir. 2004) (no aberrant behavior departure where defendant convicted of enticing minor to engage in sexual acts where defendant had two 90-minute online conversations, almost one month apart, with undercover agent posing as 13-year-old girl, during which he requested that they engage in sexual acts, he sent naked picture of himself to agent, arranged meeting place, and drove to meeting place).

Furthermore, here we cannot consider Sims's mental condition as a grounds for a diminished capacity departure because the crime involves a risk of violence, and we cannot agree that the Guidelines permit the use of aberrant behavior as an end run around this limitation. Therefore, giving Sims's extended planning and enticement of Sue and Kate, combined with frequent distribution of child pornography, we must reverse this departure.

C. Fine

Finally, Sims objects to the court's imposition of a $10,000 fine. Although Sims did make some objections to the PSR's asset calculation, Sims did not object to any fine-related issue at the sentencing hearing. Therefore, we review this fine for plain error.

Sims's current financial situation does appear to be problematic, as he lost his engineering job in New Mexico and, according to Sims's own objection to the PSR, "was not represented by counsel in his divorce proceedings and his former wife was left with all the assets and defendant ended up with only the debts." The PSR also notes, however, that "[a]ccording to the defendant, he and his ex-wife chose to divorced [sic] for financial purposes; however, they continue to reside together as a family." Moreover, prior to the divorce, Defendant "reported having various trust and retirement accounts which had an aggregated value of one million dollars."

We are struck by the fact that Defendant appears to have concealed assets by getting a divorce for financial purposes. Given these suspicious circumstances, we cannot say the district court committed plain error in setting the fine at $10,000 in this case. Therefore, we affirm this fine.

1. Conclusion

We AFFIRM Sims's convictions and the district court's pre-trial rulings in this case. We REVERSE the district court's sentence as to the acceptance of responsibility adjustment and the aberrant behavior departure. We REMAND with instructions to vacate Sims's sentence and to resentence under advisory Guidelines. Therefore, we do not reach Sims's Booker claims.^{(13) (14)}

^*.On the other hand, the court did find that Sims's statement came after he requested an attorney, and therefore suppressed that statement.

^2.Certainly, if we were faced with assessing the voluntariness of Sims's confession following a Miranda warning, "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary.'" Colorado v. Connelly, 479 U.S. 157, 167 (1986). In Connelly, the defendant was a chronic schizophrenic who, at the time of his confession, was suffering a hallucination that the "voice of God" was commanding him to confess. Id. at 161. However, because the police were unaware of his condition and did not coerce the confession, the Court refused to suppress it. Id. at 167.

This police-perspective test has not yet been applied directly to a consent to search in any published circuit case this court has found. The D.C. Circuit considered the question and noted that "[i]f police coercion . . . is also a necessary predicate to the finding that a consent to search is not voluntary, then the subject's particular 'vulnerable subjective state' would be relevant only insofar as the police knowingly took advantage of the vulnerability in eliciting a consent to search." United States v. Hall, 969 F.2d 1102, 1108 n.6 (D.C. Cir. 1992).

We are not called on to answer this question in the instant case because we conclude Sims's consent was voluntary despite his brain disorder; however, we note that since Connelly our cases have continued to rely on the familiar "totality of the circumstances" test articulated in Bustamonte, 412 U.S. at 227.

^3.In this appeal, the Government argues that the district court's decision that this warrantless search was illegal was wrong in light of this court's subsequent decision in United States v. Angevine, 281 F.3d 1130 (10th Cir. 2002). In Angevine, we held that a university professor did not have any reasonable expectation of privacy in his office computer; however, we emphasized that this issue requires a case-by-case analysis. Id. at 1134-35. We need not decide that issue here. See United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc) (holding that where a warrant is supported by probable cause absent some disputed information, we should not decide the constitutionality of the use of that disputed information based on the fundamental rule of judicial restraint).

^4.We note for the purpose of clarification that the Court in Free Speech Coalition expressly did not decide the constitutionality of "a more common and lower tech means of creating virtual images, known as computer morphing," which is the alteration of "innocent pictures of real children so that the children appear to be engaged in sexual activity." Id. at 242 (citing 18 U.S.C. § 2256(8)(C)). However, the Court noted that these morphed pictures "implicate the interests of real children" and therefore might be more likely to implicate the state's interest in protecting children from exploitation. Id.

^5.In addition, several of our sister circuits have agreed. See, e.g., United States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir. 2002); see also United States v. Farrelly, 389 F.3d 649, 653 (6th Cir. 2004).

^6.At the outset, we note that Sims's trial was conducted under circumstances that concern this court. Prior to opening statements, outside the presence of the jury, the parties debated the nature of the Government's burden of proof on this real children issue. At that point, the district court instructed defense counsel:

I'm not familiar with the case law on this issue. I'm not going to permit you to inject it in your opening statement, or to question on it. I will take a look at the case law on this issue sometime today and give you a ruling, but for purposes of opening statement, you will not be permitted to raise the question as to--or to challenge the issue as to whether they are real children or not.

Later, after analyzing the pre-Free Speech Coalition case law on point, the district court concluded--again outside the presence of the jury--that proof that the children depicted are real children "is not an element required by the Government to establish beyond a reasonable doubt."

Certainly, this was an inaccurate statement of the law at the time. See Sims I, 220 F. Supp. 2d at 1226 (recognizing error). Sims's inability to cross examine witnesses or discuss in his opening statement the real children issue raises real concerns about the fairness of Sims's trial. However, Sims does not claim any due process violation in his opening brief and instead asserts only the insufficiency of the evidence and jury instruction issues. Certainly, a defendant can waive a constitutional claim.  See United States v. Green, 405 F.3d 1180, 1190-91 (10th Cir. 2005).

In addition, Sims's position at trial, as reflected in his proposed jury instruction on the point, was that if "the government has not proved that the images involved here are not computer-generated, then you must find Mr. Sims is not guilty." Indeed, Sims wanted to propose a jury instruction explaining the process of "morphing" innocent images of children into depictions of children engaged in sexually explicit conduct and noting that "[t]he technology of computer-imaging makes it difficult, if not impossible, to distinguish computer-generated from photographic depictions of child sexual activity."

Aside from attempting to inject this near-impossible burden on the Government to prove this negative, Sims has presented no evidence that would cast any doubt on the authenticity of the images at issue in this case whatsoever. Indeed, there is a total failure of proof as to what Sims's cross-examination of any witness would have been or what it would have done to help Sims's case. Moreover, although Sims renewed his argument about the government's burden at the close of the Government's case, and immediately before closing arguments, Sims never renewed his objection when any witnesses were on the stand. Absent a more definitive district court ruling, it is difficult to review any purported errors. See generally United States v. Mejia-Alarcon, 995 F.2d 982, 987 (10th Cir. 1993). However, most fundamentally, absent any actual proffer of evidence or suggestion as to how specific witnesses could have assisted his case, it is essentially impossible to find prejudice.

^7.Because we find no reversible error in Sims's Count Three conviction, we deny Sims's further argument that his trial on Counts One and Two was so tainted by Count Three that a new trial is warranted.

^8.When a defendant is convicted of multiple counts, the sentencing court determines a single base offense level by a process called grouping:

Roughly speaking, when a defendant has been convicted of multiple counts, the Guidelines require the sentencing court to divide the counts into distinct groups of closely related counts, compute the offense level for each group, and then determine the combined offense level by increasing the highest offense level for any group by an amount based on the number of "units," which depends upon the number of groups with offense levels comparable to the highest level.

United States v. Jose-Gonzalez, 291 F.3d 697, 700 (10th Cir. 2002); see also U.S.S.G. ch. 3, pt. D. The Guidelines provide that "[a]ll counts involving substantially the same harm shall be grouped together into a single Group." U.S.S.G. § 3D1.2. Generally, counts involve substantially the same harm when they involve the same victim, transaction, or criminal objective; are measured based on the same quantity of a substance that is the basis for total harm; or share a specific guideline offense characteristic. Id.

^9.Sims also objects to the district court's application of a cross-reference to reach this original base offense level based on a finding that Sims traveled "for the purpose of producing a visual depiction" of a minor engaged in sexually explicit conduct. See U.S.S.G. § 2G1.1(c)(1). However, Sims's arguments here have no merit. The district court did not have to find that the singular purpose of Sims's trip was to produce child pornography, and there was more than sufficient evidence that this was a purpose of his trip. Sims sent e-mails to another adult saying he would send pictures of the girls when he returned, emailed Sue and Kate about taking pictures of them, and had at least three cameras in his possession when he was arrested at the roller-rink.

^10.As a matter of Guidelines application, we note that the Guideline for Count One expressly provides: "If the offense involved more than one victim, Chapter Three, Part D (Multiple Counts) shall be applied as if the promoting of commercial sex act or prohibited sexual conduct in respect to each victim had been contained in a separate count of conviction." U.S.S.G. § 2G1.1. Therefore, the fact that there are two groups for this single Count One conviction is consistent with the Guidelines.

^11.Indeed, we have regularly held crimes involving sexual contact with minors to be crimes of violence. See, e.g., United States v. Rowland, 357 F.3d 1193, 1197-98 (10th Cir. 2004) (affirming "crime of violence" classification under § 4B1.2 where "Oklahoma's statutory definition of sexual battery presents the serious possibility of risk of physical injury") (citations omitted); United States v. Vigil, 334 F.3d 1215, 1223-24 (10th Cir. 2003) (concluding risk of injury "inherent" in Colorado's aggravated incest offense makes it a crime of violence under § 4B1.2 even though, like arson or burglary, there might be some cases where incest occurs without actual physical injury).

^12.Both the Government and Sims object to the size of this departure. Predictably, the Government asserts it was unreasonably large while Sims claims it was too small where the district court earlier suggested it would depart ten levels. Because we ultimately conclude the aberrant behavior departure was not warranted at all, we do not reach these issues of degree.

^13.Before this court is also Sims's motion to strike portions of the Government's brief referencing Sims's suppressed confession and a pending civil proceeding unrelated to the instant case. Because we have not relied on any of the contested information in reaching this decision, we deny Sims's motion. Sims also requested additional oral argument on the Booker issues in this case. Because we do not need to reach those issues here, we DENY that request.

^14. Sims' Motion to Supplement the Record on Appeal is granted.

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