United States v. James Walker, Jr. , 470 F. App'x 357 ( 2012 )

Case: 11-30505 Document: 00511844727 Page: 1 Date Filed: 05/04/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 4, 2012
No. 11-30505
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
JAMES A. WALKER, JR.,
Defendant - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:10-CR-143-1
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
James A. Walker, Jr., appeals his guilty-plea conviction for receiving child
pornography, in violation of 18 U.S.C. § 2252(a)(2). He contends: the indictment
failed to charge him with an offense under § 2252(a)(2) because it did not allege
specifically that he knew the visual depictions he received involved the use of a
minor engaging in sexually-explicit conduct; and, as a result, the defect is
jurisdictional and not waived by his guilty plea.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 11-30505
Walker states that our precedent would foreclose this appeal; however,
relying on cases from other circuits, he contends our court has erroneously
interpreted United States v. Cotton, 535 U.S. 625, 630-31 (2002). Although our
court has an unpublished opinion directly on point, our unpublished opinions are
not binding precedent. See United States v. Templet, 431 F. App’x 270, 271 (5th
Cir. 2011) (per curiam); see, e.g., 5th Cir. R. 47.5.4.
“[W]hen a defendant enters a voluntary and unconditional guilty plea, the
plea has the effect of waiving all nonjurisdictional defects in the prior
proceedings”. United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir.
2008) (internal quotation marks omitted). In reaching that conclusion, our court
noted that, under Cotton, indictment defects do not deprive a court of
jurisdiction. Id.; see also United States v. Cothran, 302 F.3d 279, 283 (5th Cir.
2002).
Walker does not contend that his guilty plea was unknowing or
involuntary, and he admitted in the signed factual basis that he knowingly
searched for child pornography to download onto his computer. Thus, he waived
any challenge to the sufficiency of the indictment by pleading guilty. See
Daughenbaugh, 549 F.3d at 1012-13.
The written judgment provides the offense of conviction was receipt and
possession of child pornography. Pursuant to his plea agreement, however,
Walker pleaded guilty only to count one of the indictment, which charged him
with receipt of child pornography. In accordance with that agreement, the
district court dismissed count two, which charged Walker with possession of
child pornography.
“After giving any notice it considers appropriate, the court may at any
time correct a clerical error in a judgment, order, or other part of the record, or
correct an error in the record arising from oversight or omission.” Fed. R. Crim.
P. 36. Rule 36 is the appropriate vehicle for changes that do not substantively
alter the orally announced sentence but instead correct errors in the written
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No. 11-30505
judgment. United States v. Spencer, 513 F.3d 490, 491-92 (5th Cir. 2008). Our
court has noted sua sponte that it must remand for the purpose of correcting
irregularities contained in the judgment. United States v. Johnson, 588 F.2d
961, 964 (5th Cir. 1979) (citing Fed. R. Crim. P. 36). Because the judgment does
not properly reflect the crime of conviction, this matter is remanded for the
limited purpose of correcting the judgment to reflect that Walker was convicted
of receipt of child pornography.
AFFIRMED; LIMITED REMAND FOR CORRECTION OF JUDGMENT.
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