United States v. Caley , 355 F. App'x 760 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4391
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER SCOTT CALEY,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. G. Ross Anderson, Jr., Senior
District Judge. (8:05-cr-01270-GRA-1)
Submitted: December 2, 2009 Decided: December 14, 2009
Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
David B. Betts, Columbia, South Carolina, for Appellant. W.
Walter Wilkins, United States Attorney, Maxwell Cauthen,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher S. Caley was sentenced to time served
following his conditional guilty plea on remand to possessing
child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)
(2006). On appeal, Caley challenges the district court’s denial
of his motion to dismiss his indictment for lack of
jurisdiction.
We review “de novo the district court’s denial of a
motion to dismiss an indictment where the denial depends solely
on questions of law.” United States v. Hatcher, 560 F.3d 222,
224 (4th Cir. 2009). Section 2252A(a)(5)(B) prohibits “[a]ny
person” from:
knowingly possess[ing] any book, magazine, periodical,
film, videotape, computer disk, or any other material
. . . that was produced using materials that have been
mailed, or shipped or transported in interstate or
foreign commerce by any means, including by computer. *
*
On October 13, 2008, one day before the superseding
indictment was filed, § 2252A(a)(5)(B) was amended to forbid
“[a]ny person” from “knowingly possess[ing], or knowingly
access[ing] with intent to view” the prohibited material, and
expanding the language concerning interstate or foreign
commerce. 18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2009). To
avoid any ex post facto implications, assessment of Caley’s
conviction is made under the pre-amendment language of the
statute. See Weaver v. Graham, 450 U.S. 24, 28 (1981) (defining
an ex post facto law as “any law which imposes a punishment for
an act which was not punishable at the time it was committed”
(internal quotation marks omitted)).
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There is no dispute that Caley possessed material containing
images of child pornography. Rather, Caley argues the
interstate or foreign commerce requirement of § 2252A(a)(5)(B)
could not be satisfied because there was no evidence that the
pornographic images were produced on materials that had been
transported interstate. Caley’s assertion lacks merit. The
indictment clearly charged Caley with possessing images he had
stored on his computer. We find that the pornographic images
were “produced” for purposes of § 2252A(a)(5)(B) when they were
copied to Caley’s computer. See United States v. Schene, 543
F.3d 627, 638-39 (10th Cir. 2008); United States v. Anderson,
280 F.3d 1121, 1125 (7th Cir. 2002); United States v.
Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002). We find the
indictment was clearly adequate.
Accordingly, we affirm Caley’s conviction and dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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