United States v. James Rivers , 598 F. App'x 291 ( 2015 )


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  •      Case: 14-10787      Document: 00512975113         Page: 1    Date Filed: 03/19/2015
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-10787
    Summary Calendar
    United States Court of Appeals
    Fifth Circuit
    FILED
    March 19, 2015
    UNITED STATES OF AMERICA,
    Lyle W. Cayce
    Clerk
    Plaintiff-Appellee
    v.
    JAMES BRIAN RIVERS,
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:13-CR-328-1
    Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
    PER CURIAM: *
    James Brian Rivers appeals his conviction for production of child
    pornography under 18 U.S.C. § 2251(a) and possession of prepubescent child
    pornography under 18 U.S.C. § 2252A(a)(5)(B). In the factual basis for his plea,
    he admitted that the child pornography was produced using materials that
    were “mailed, shipped, or transported in or affecting interstate or foreign
    commerce” and possessed on a cellular telephone that was produced using
    * 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 R. 47.5, the court has determined that this opinion should not
    be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-10787      Document: 00512975113      Page: 2    Date Filed: 03/19/2015
    No. 14-10787
    materials that were “mailed, shipped, or transported in or affecting interstate
    or foreign commerce.”
    Rivers contends that § 2251(a) and § 2252A(a)(5)(B) should be construed
    as requiring the Government to prove that the materials used to produce or
    possess the child pornography were recently moved in interstate commerce or
    were moved in interstate commerce for the purpose of committing the offenses.
    Relying on the Supreme Court’s decision in Bond v. United States, 
    134 S. Ct. 2077
    (2014), he contends that a conviction in the absence of such proof
    impermissibly intrudes upon the police power of the States. Rivers argues
    that, as he did not admit such facts, the factual basis for his guilty plea was
    insufficient under Federal Rule of Criminal Procedure 11.
    “Rule 11(b)(3) requires a district court taking a guilty plea to make
    certain that the factual conduct admitted by the defendant is sufficient as a
    matter of law to establish a violation of the statute to which he entered his
    plea.” United States v. Trejo, 
    610 F.3d 308
    , 313 (5th Cir. 2010) (footnote
    omitted).   As Rivers concedes, plain error review applies to his forfeited
    objection to the factual sufficiency of his plea. See 
    id. To establish
    plain error,
    he must show a forfeited error that is clear or obvious that affects his
    substantial rights. See Puckett v. United States, 
    556 U.S. 129
    , 135 (2009). If
    he makes such a showing, this court has the discretion to correct the error but
    only if it seriously affects the fairness, integrity, or public reputation of judicial
    proceedings. See 
    id. We have
    held that the Commerce Clause authorizes Congress to prohibit
    local, intrastate possession and production of child pornography where the
    materials used in the production were moved in interstate commerce. See
    United States v. Dickson, 
    632 F.3d 186
    , 192 (5th Cir. 2011); United States v.
    Kallestad, 
    236 F.3d 225
    , 226-31 (5th Cir. 2000). As Rivers concedes, the district
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    No. 14-10787
    court’s finding of an adequate factual basis for his guilty plea was not a clear
    or obvious error in light of this caselaw. See 
    Puckett, 556 U.S. at 135
    . He raises
    the issue to preserve it for further review.
    Alternatively, Rivers asserts that Dickson and Kallestad were wrongly
    decided and that the Commerce Clause does not authorize Congress to impose
    federal criminal liability where the defendant’s conduct is tenuously related to
    interstate commercial activity. He also argues, in the alternative, that plain
    error review should not apply to his forfeited objection to the factual basis. One
    panel of this court may not overrule the decision of another absent a
    superseding en banc or Supreme Court decision. United States v. Lipscomb,
    
    299 F.3d 303
    , 313 & n.34 (5th Cir. 2002). Accordingly, Rivers is correct that
    these issues are foreclosed.
    The judgment of the district court is AFFIRMED. The Government’s
    motions for summary affirmance and, alternatively, for an extension of time to
    file an appellate brief, are DENIED.
    3