United States v. Miller ( 2023 )

Case: 22-10915 Document: 00516732378 Page: 1 Date Filed: 05/01/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10915
Summary Calendar FILED
____________ May 1, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Mark Alan Miller,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:20-CR-284-1
______________________________
Before Stewart, Duncan, and Wilson, Circuit Judges.
Per Curiam: *
Mark Alan Miller appeals his conviction and sentence for production
of child pornography, 18 U.S.C. § 2251(a). Relying on the Supreme Court’s
decision in Bond v. United States, 572 U.S. 844, 847-49 (2014), he challenges
the sufficiency of the factual basis for his conviction and argues that the
district court erred by accepting a guilty plea based on a factual basis that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10915 Document: 00516732378 Page: 2 Date Filed: 05/01/2023
No. 22-10915
failed to admit an offense. The Government contends that Miller is
precluded from raising his claim under the appeal waiver. It argues that while
Miller frames his argument as a challenge to the factual basis, it is really a
challenge to the constitutionality of § 2251(a), which he waived by entering a
plea agreement. We pretermit consideration of the applicability of the appeal
waiver and reach the merits. See United States v. DeLeon, 915 F.3d 386, 389
n.2 (5th Cir. 2019). Even if Miller did not waive the error he complains of by
pleading guilty, the issue does not survive plain-error review.
It is well-settled that the Commerce Clause authorizes Congress to
prohibit local, intrastate production of child pornography where the materials
used in the production had been moved in interstate commerce. See United
States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019); United States v. Dickson,
632 F.3d 186, 189-90 (5th Cir. 2011); United States v. Kallestad, 236 F.3d 225,
226-31 (5th Cir. 2000). Miller concedes that the cell phone used in his crime
moved in interstate or foreign commerce and that his argument on this point
is foreclosed by current law. See Bailey, 924 F.3d at 1290.
This court has also previously rejected Miller’s alternative argument,
based on National Federation of Independent Business v. Sebelius, 567 U.S. 519,
551 (2019), that the Commerce Clause authorizes Congress to regulate only
commercial activity and not activity that is tenuously related to interstate
commerce. See United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013).
Under the rule of orderliness, we are “not at liberty to overrule our settled
precedent because the Supreme Court’s decision in National Federation did
not overrule it.” Id. This court is bound by Dickson and Kallestad and Miller
is correct that relief under plain-error review is unavailable. See Dickson, 632
F.3d at 192; Kallestad, 236 F.3d at 228-31.
Accordingly, the Government’s motion for dismissal is DENIED
and the district court’s judgment is AFFIRMED.
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