withdraw the majority opinion along with the concurring and dissenting opinion filed December 23, 2005, and Irving's convictions on counts two and three previously vacated are now affirmed in the revised opinion that follows.


2
Defendant Stefan Irving (defendant or appellant) appeals from a judgment entered on February 23, 2004 in the United States District Court for the Southern District of New York (Kaplan, J.) convicting him, following a jury trial, of two counts of traveling outside the United States for the purpose of engaging in sexual acts with children under the age of 18, in violation of 18 U.S.C. § 2423(b); one count of traveling outside the United States for the purpose of engaging in sexual acts with children under the age of 12, in violation of 18 U.S.C.child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B) and (a)(5)(B). But, because the district court treated the Sentencing Guidelines as mandatory, we remand for consideration of whether resentencing is warranted under United States v. Crosby, 397 F.3d 103 (2d Cir.2005).

BACKGROUND

4
Defendant is a former chief pediatrician for the Middletown, New York school district. On April 29, 1983 while employed as school physician, he was convicted of attempted sexual abuse in the first degree of a seven-year-old boy that resulted in the revocation of his license to practice medicine in New York, and a sentence of 16 to 48 months imprisonment. Thirteen years later in 1996, the federal government initiated a nationwide investigation of individuals suspected of traveling to Mexico for the purpose of engaging in sexual acts with