United States v. Eduardo Perez-Carrillo , 365 F. App'x 32 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-3071
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Eduardo Perez-Carrillo, *
* [UNPUBLISHED]
Appellant. *
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Submitted: January 25, 2010
Filed: February 10, 2010
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Before WOLLMAN, RILEY, and SMITH, Circuit Judges.
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PER CURIAM.
Eduardo Perez-Carrillo (Perez) pled guilty to possessing child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B). The district court1 sentenced him to 120
months in prison and supervised release for life. In this appeal of Perez’s conviction
and sentence, counsel has moved to withdraw and has filed a brief under Anders v.
California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable. In a pro
se supplemental brief, Perez argues (1) the indictment was defective; (2) the district
court lacked jurisdiction because section 2252A(a)(5)(B) exceeded Congress’s
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The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
Commerce Clause authority, and there was no evidence the images traveled across
state lines; (3) his due process rights and Federal Rule of Criminal Procedure 32 were
violated by the court’s failure to verify that Perez and counsel had read and discussed
the presentence report (PSR), and he was prejudiced because he could have raised
defenses to culpability for individual images; (4) he is actually innocent of the charges
and his right to a jury trial was waived without his consent; and (5) counsel was
ineffective on appeal.
Counsel’s and Perez’s arguments fail, and we reject them seriatim: (1) the
district court did not abuse its discretion in imposing the 120-month prison sentence,
see Gall v. United States, 552 U.S. 38, 51 (2007); (2) the indictment sufficiently
charged the offense, see United States v. Jenkins-Watts, 574 F.3d 950, 968 (8th Cir.
2009) (describing when the indictment is challenged for the first time after the verdict
is returned, an appellate court upholds the indictment unless the indictment is so
defective that by no reasonable construction can it be said to charge an offense of
which defendant was convicted); (3) section 2252A(a)(5)(b) does not exceed
Congress’s Commerce Clause power, see United States v. Bausch, 140 F.3d 739, 741
(8th Cir. 1998) (deciding 18 U.S.C. § 2252(a)(4)(B), which criminalizes possession
of 3 or more visual depictions of minors engaged in sexual activity, is not beyond
Congress’s commerce power, because it contains an express jurisdictional element
requiring transport in interstate and foreign commerce of visual depictions or materials
used to produce depictions), and there was sufficient evidence the images traveled
through interstate commerce, United States v. Rayl, 270 F.3d 709, 715 (8th Cir. 2001)
(concluding evidence that child pornography images traveled through computer
servers located outside defendant’s state to get to his computer was sufficient to show
that images were transported through interstate commerce); (4) Perez cannot show
plain error resulting from the court’s Rule 32 error, as the prejudice he alleges resulted
from his counsel’s failure, not the court’s error, see United States v. Prado, 204 F.3d
843, 845 (8th Cir. 2000) (stating a failure to verify the defendant and attorney had
read and discussed the PSR is waived and harmless where the defendant did not
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request additional time to review the PSR and did not describe how he was
prejudiced); (5) Perez clearly waived his right to trial in his plea agreement, and he
has always maintained that he knowingly possessed child pornography on his
computer, disputing only the number of videos of which he was aware and who was
responsible for downloading the videos, see Rayl, 270 F.3d at 714 (explaining, one
violates § 2252A(a)(5)(B) by knowingly possessing materials that contain child
pornography and were transported in interstate commerce by any means); and (6)
Perez cannot demonstrate the requisite prejudice from counsel’s alleged deficiencies
on appeal, see United States v. Davis, 508 F.3d 461, 463-64 (8th Cir. 2007) (holding
the defendant did not establish prejudice where counsel tendered an Anders brief,
because an appellate court reviews the record and will order full briefing of any
nonfrivolous issues).
Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues. We grant counsel’s motion to
withdraw, and we affirm the district court’s judgment.
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