                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-4074
                                   ___________

United States of America,            *
                                     *
           Plaintiff-Appellee,       *
                                     * Appeal from the United States
      v.                             * District Court for the Northern
                                     * District of Iowa.
Allan C. Mugan,                      *
                                     *
           Defendant-Appellant.      *
                                ___________

                             Submitted: October 19, 2004
                                Filed: January 12, 2005
                                 ___________

Before MURPHY, HEANEY and BEAM, Circuit Judges.
                          ___________


MURPHY, Circuit Judge.


      Allan Mugan pled guilty to using a minor in sexually explicit conduct to
produce child pornography, and he was sentenced by the district court1 to 240
months. He appeals, contending that the intrastate production and possession of child
pornography is beyond the reach of the Commerce Clause and cannot therefore be
prosecuted by federal authorities even if the pornography was made with materials


      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
transported in interstate commerce. He argues in addition that the district court erred
by refusing to allow him to withdraw his guilty plea, by enhancing his sentence two
levels for obstruction of justice, and by departing upward two levels from his
sentencing guideline range. We affirm.

                                          I.

       Mugan used a digital camera to take sexually explicit photographs of himself
having intercourse with his 13 year old daughter. The photographs were stored on
a digital memory card that had previously been shipped in interstate and foreign
commerce. Because the photographs were stored in this way, they were capable of
immediate and widespread distribution over the internet. Law enforcement officials
discovered the memory card while executing a warrant at Mugan's residence. At that
time they also found a videotape of Mugan's daughter dancing while the camera
zoomed in on her pubic area.

       Mugan was indicted for using a minor to engage in sexually explicit conduct
for the purpose of producing a visual image, with the use of materials which had been
shipped in interstate commerce, in violation of 18 U.S.C. § 2251(a).2 The indictment
also charged Mugan with knowing possession of child pornography produced with
interstate materials, in violation of 18 U.S.C. § 2252A(a)(5)(B).3 Mugan moved to


      2
         18 U.S.C. § 2251(a) prohibits the use of a minor “to engage in...any sexually
explicit conduct for the purpose of producing any visual depiction of such conduct”
if the depiction is produced with materials previously "mailed, shipped, or transported
in interstate or foreign commerce by any means, including by computer.”
      3
       18 U.S.C. § 2252A(a)(5)(B) prohibits the knowing possession of “any book,
magazine, periodical, film, videotape, computer disk, or any other material that
contains an image of child pornography” if it was produced with materials that have
been “mailed, or shipped or transported in interstate or foreign commerce by any
means, including by computer.”

                                         -2-
dismiss the indictment, contending that the federal government was without authority
to prosecute him since he had not transported the stored images in interstate
commerce, nor had he intended to do so.

      Before the district court ruled on the motion to dismiss, Mugan entered a
conditional plea of guilty to the charge under § 2251(a) of using a minor in order to
produce child pornography. His plea agreement preserved his right to raise his
constitutional issue on appeal, and the district court later denied his motion to
dismiss. Mugan attempted to appeal prematurely from that ruling, but his appeal was
dismissed for lack of jurisdiction.

       Mugan's relationship with his attorney became strained over the course of the
proceedings. His lawyer moved to withdraw from representation, complaining that
Mugan failed to take legal advice or pay attorney fees. Mugan opposed the motion,
and it was withdrawn before he pled guilty. The motion was later renewed and
granted by the court; new counsel was then appointed for Mugan. One week prior to
his sentencing hearing, Mugan filed a motion to withdraw his guilty plea. He
contended that his first lawyer had not adequately explained the plea bargaining
process and that he had been misled about the sentencing departures that would be
sought by the government. The motion was denied, and the case came on for
sentencing on Mugan's § 2251(a) conviction.

       The district court assigned Mugan a base offense level of 27, see U.S.S.G. §
2G2.1(a), and increased it by four levels due to the age of the victim and her
relationship to Mugan. See U.S.S.G. §§ 2G2.1(b)(1)(B), 2G2.1(b)(2). The district
court also imposed a two level enhancement for obstruction of justice based on letters
in which Mugan had solicited false, exculpatory testimony from family members. His
adjusted offense level of 33, together with his criminal history category III, resulted
in a sentencing range of 168 to 210 months.



                                         -3-
       The district court departed upward two levels on the grounds that Mugan’s
administration of sleeping medication to his daughter to facilitate the production of
the sexually explicit photographs was a factor not accounted for in the sentencing
guidelines, see 18 U.S.C. 3553(b), and that Mugan's criminal history failed to reflect
the seriousness of his past conduct. See U.S.S.G. § 4A1.3(a)(1). The resulting total
offense level of 35 placed Mugan in a range of 210 to 262 months imprisonment, and
the district court sentenced him to the statutory maximum of 240 months in prison.
His sentence also included three years supervised release, $4,500 restitution to his
wife for wages lost when she was fired as a result of his conduct, and a $100 special
assessment. Mugan appeals from the judgment.

                                         II.

       Mugan argues that the statutes under which he was charged are beyond the
constitutional authority of Congress to regulate interstate and foreign commerce
because they target the purely intrastate production and possession of child
pornography. U.S. Const. Art. I, § 8, Cl. 3. Mugan contends that the intrastate
production and possession of child pornography without a proven intent to distribute
it beyond the state is noneconomic conduct outside the reach of the commerce power,
citing United States v. Morrison, 529 U.S. 598 (2000). Although the statutes contain
a jurisdictional element which requires that the child pornography have been
produced with interstate materials, he says they fail to ensure a connection between
the images and interstate commerce. He also claims that Congress has not made
findings addressing the effects of intrastate pornography on interstate commerce and
that the connection between purely local child pornography and interstate commerce
is attenuated.

       The government responds that this court has already upheld the
constitutionality of § 2251(a) and other child pornography provisions, based on their
express jurisdictional elements requiring that interstate materials have been used in

                                         -4-
the production of the pornography. Since Mugan was shown to have used a digital
memory stick obtained through interstate commerce in producing the images, the
government maintains that his prosecution is constitutional. The government further
argues that the prosecutor need not prove commercial distribution or an intent to
distribute commercially because the child pornography industry as a whole
substantially affects interstate commerce.

      While we review a challenge to the constitutionality of a statute de novo,
United States v. Crawford, 115 F.3d 1397, 1400 (8th Cir. 1997), cert. denied, 522
U.S. 934 (1997), "[d]ue respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment only upon a plain
showing that Congress has exceeded its constitutional bounds," United States v.
Morrison, 529 U.S. at 607.

       Congress has the power under the Commerce Clause to regulate “activities that
substantially affect interstate commerce," as well as the channels and
instrumentalities of interstate commerce. United States v. Lopez, 514 U.S. 549, 558-
59 (1995). Whether an activity is one that substantially affects interstate commerce
is determined by focusing on four factors in particular: (1) whether the regulated
activity is economic in nature; (2) whether the statute contains an express
jurisdictional element which limits its application to activities with "an explicit
connection with or effect on interstate commerce"; (3) whether there are
congressional findings about the regulated activity's effects on interstate commerce;
and (4) whether the connection between the activity and a substantial effect on
interstate commerce is attenuated. Morrison, 529 U.S. at 610-13.

       We have already upheld the constitutionality of federal child pornography
prosecutions under the statute of which Mugan was convicted and under similar
statutes. The first of our cases preceded the Supreme Court's Morrison decision, but
the other two came after it. In United States v. Bausch, 140 F.3d 739 (8th Cir. 1998),

                                         -5-
we affirmed a conviction for possession of child pornography under 18 U.S.C. §
2252(a)(4)(B). We rejected the defendant's claim that his prosecution was
unconstitutional, for the statute's "express jurisdictional element," which limits
prosecution to cases in which the depictions or the underlying materials had been
transported in interstate commerce, ensured that "each defendant's pornography
possession affected interstate commerce." Id. at 741. Then in United States v.
Hoggard, 254 F.3d 744, 746 (8th Cir. 2001), we upheld a conviction under § 2251(b)
for pornographic photographs of children engaged in sex acts with the defendant's
wife which were produced with interstate materials. In the opinion authored by Judge
Richard S. Arnold, the court held that it was "bound by the reasoning of Bausch" and
it distinguished Morrison and Lopez because in neither of those cases "did the statute
involved contain an express jurisdictional element, requiring the government to
prove, in each case, a concrete connection with interstate commerce." Id.

       Our third precedent was one involving the same statute under which Mugan
was convicted. The defendant in United States v. Hampton, 260 F.3d 832, 833-34
(8th Cir. 2001), cert. denied, 535 U.S. 1058 (2002), was prosecuted under §§ 2251(a)
and 2252(a)(4)(B) for the intrastate production and possession of child pornography
on videotapes transported in interstate commerce. The defendant argued that Bausch
was "no longer good law" in light of Morrison, Jones v. United States, 529 U.S. 848
(2000), and Lopez. Id. at 834. The opinion, authored by then Chief Judge Roger
Wollman, pointed out that subsequent to those Supreme Court decisions, our court
held in Hoggard "that Bausch continues to control the constitutionality of federal
criminalization of child pornography produced with materials that have traveled in
interstate commerce." Id. at 834-35. The defendant's constitutional attack thus failed.

      These circuit precedents are controlling here. See United States v. Wright, 22
F.3d 787, 788 (8th Cir. 1994). The statutes under which Mugan was charged, §§
2251(a) and 2252A(a)(5)(B), both require proof that the subject child pornography
was produced with materials transported in interstate commerce, and the evidence in

                                         -6-
this case includes proof that the offending images were stored on a digital memory
card previously transported in interstate commerce. Mugan's convictions are
therefore tied to interstate commerce, and they are not constitutionally infirm.

       Although our Eighth Circuit cases have focused on the express jurisdictional
element part of the Morrison test in analyzing the constitutionality of federal
prosecution of intrastate child pornography, some other circuits have used a broader
approach. In a case brought like Mugan's under § 2251(a), for the production of child
pornography with equipment transported in interstate commerce, the First Circuit
looked at the congressional findings underlying the statute. See United States v.
Morales-De Jesús, 372 F.3d 6 (1st Cir. 2004). It cited the findings Congress made
about the large scale of the interstate child pornography market, the reliance of that
market on materials produced intrastate, and the ability of intrastate production
to"inflame[] the desires" of consumers and thereby increase interstate demand. Id.
at 10-11 (quoting Child Pornography Protection Act of 1996, Pub. L. No. 104-208,
§ 1(4), 110 Stat. 3009 (1996)). Based on the existence of a nationwide "highly
organized, multimillion dollar" child pornography industry that relies on locally
produced images, id. at 10 (quoting S. Rep. No. 95-438, at 6 (1977)), the First Circuit
concluded that the intrastate production of child pornography is an economic activity
which has a direct connection with a substantial effect on interstate commerce and
that Congress could "curb the nationwide supply for these materials" by stopping
such intrastate production. Id. at 16.

       In yet another § 2251(a) prosecution, the Second Circuit used a similar analysis
in rejecting a challenge to federal jurisdiction in a case where child pornography was
produced with videocassettes which had traveled interstate. United States v. Holston,
343 F.3d 83 (2d Cir. 2003). The court found that intrastate child pornography
production is an economic activity due to its role in supplying the extensive interstate
market which Congress documented and that there is more than an attenuated
connection between intrastate child pornography production and a substantial effect

                                          -7-
on interstate commerce. Id. at 88-89. Since “much of the child pornography that
concerned Congress is homegrown, untraceable, and enters the national market
surreptitiously,” Congress had the authority to prohibit the “local production that
feeds the national market and stimulates demand," for it has a substantial effect on
interstate commerce. Id. at 90.

      The Fifth Circuit also focused on the national market in United States v.
Kallestad, 236 F.3d 225 (5th Cir. 2000), where it upheld a § 2252(a)(4)(B) conviction
for possession of pornographic materials. It observed that interstate child
pornography traffic often “‘involves photographs taken by child abusers
themselves,’” which are then published in commercial magazines distributed through
the mails. Id. at 228-29 (quoting Attorney General's Commission on Pornography:
Final Report 406 (U.S. Dep't of Justice, 1986)). The relationship between intrastate
possession and interstate commerce was held to be substantial. Since law
enforcement officials are often unable to determine whether a particular piece of child
pornography has traveled in interstate commerce, the Fifth Circuit concluded that
Congress could constitutionally regulate purely intrastate production and possession
in order to curb interstate trade. Id. at 231.

       In these three child pornography cases our sister circuits considered all of the
Morrison factors, including the realities of the marketplace,4 and it makes sense for
us also to look beyond the jurisdictional nexus element in analyzing the effects on


      4
        Not long after Morrison, two circuits took a narrower approach in deciding
that § 2252(a)(4)(B) had been unconstitutionally applied in the prosecutions before
them. The Sixth Circuit held that a substantial connection to interstate commerce was
not evident in the facts presented in United States v. Corp, 236 F.3d 325, 332-33 (6th
Cir. 2001), and the Ninth Circuit found no economic activity in the specific facts of
United States v. McCoy, 323 F.3d 1114, 1115 (9th Cir. 2003). Neither case
considered the extent of the child pornography market described by Congress and its
dependency on intrastate materials.

                                         -8-
interstate commerce. The extent of the interstate market for child pornography
described by Congress and its dependence upon locally produced materials
demonstrate that the intrastate production and possession of child pornography is an
economic activity connected to interstate commerce. The congressional findings
underlying the child pornography statute at issue in the case before the court
distinguish it from Lopez, 514 U.S. at 562-63, where there were no findings tying the
statute to interstate commerce, and from Morrison, 529 U.S. at 614-15, where there
were only general findings showing no more than an attenuated effect on interstate
commerce. Moreover, unlike the possession of guns in school zones in Lopez, 514
U.S. at 561, and the gender related violence in Morrison, 529 U.S. at 617, the
intrastate production of child pornography is “an essential part of a larger regulation
of economic activity, in which the regulatory scheme could be undercut unless the
intrastate activity were regulated,” Lopez, 514 U.S. at 561.

       The connection between intrastate child pornography and interstate commerce
is even stronger in this case than those decided by the First, Second, and Fifth
Circuits. Not only had the materials Mugan used in the production of his
pornography traveled in interstate commerce, but the sexually explicit images of him
with his daughter were digitally stored on a memory card. By storing the images on
this digital card, Mugan placed them on a medium which would permit their
immediate and widespread dissemination over the internet. Although locally
produced and possessed, Mugan’s images were thus ready to be offered on the
national market in child pornography. In contrast, the images at issue in Morales-De
Jesús, Holston, and Kallestad were not as easily distributable since they would have
required physical reproduction and dissemination on film or videocassettes. The
convictions in those cases were nonetheless upheld without proof that the images had
been transmitted in interstate commerce or that such transmission was intended. That
type of detailed proof need not be made in each individual case when there is a
“general regulatory statute bear[ing] a substantial relation to commerce,” such as
there is here. See Lopez, 514 U.S. at 558 (internal citations omitted). This is because

                                         -9-
"the de minimis character of individual instances arising under [such a] statute is of
no consequence." Id.

       Not only must Mugan's constitutional challenge be rejected under our circuit
precedents, but a more detailed application of the Morrison factors supports that
result. Given the congressional findings about the nationwide child pornography
market and its dependence upon locally produced materials for both supply and
demand, Mugan is not entitled to prevail on his constitutional arguments.

                                         III.

       Mugan next argues that the district court erred in denying his motion to
withdraw his guilty plea. He contends that he should have been allowed to withdraw
the plea because his counsel was ineffective and the prosecutor was misleading about
the extent of sentencing departures that would be sought. We review a district court's
denial of a motion to withdraw a plea for abuse of discretion. United States v.
Payton, 168 F.3d 1103, 1105 (8th Cir. 1999). A guilty plea may be withdrawn before
sentencing if the defendant demonstrates a "fair and just reason" for the withdrawal.
Fed. R. Crim. P. 11(d)(2)(B). The district court may also consider any assertions of
legal innocence, the amount of time between the plea and the motion to withdraw, and
the prejudice to the government in granting the motion. Payton, 168 F.3d at 1105.
The defendant bears the burden of showing fair and just grounds for withdrawal.
United States v. Gray, 152 F.3d 816, 819 (8th Cir. 1998).

      Mugan did not show a fair and just reason for the withdrawal of his plea. No
factual record was developed to support his assertions of ineffective assistance, and
such claims ordinarily are best reviewed in collateral proceedings. See Payton, 168
F.3d at 1105 n.2. Mugan’s contention that he was misled about the government’s
sentencing posture is also not supported by the record. The government stated at
Mugan's plea hearing that the parties could seek departures under the plea agreement,

                                        -10-
and the court notified Mugan that he faced up to twenty years in prison. At the same
hearing Mugan acknowledged that no promises beyond those in the plea agreement
had been made to him. Mugan did not move for withdrawal until five months after
the entry of his plea (and three and a half months after the appointment of new
counsel), and his only assertion of innocence was made at the prompting of his lawyer
during the motion hearing. Guilty pleas should not be "set aside lightly." United
States v. Prior, 107 F.3d 654, 657 (8th Cir. 1997), cert. denied, 522 U.S. 824 (1997).
We conclude that the district court did not abuse its discretion in denying Mugan's
motion to withdraw.

                                         IV.

       Mugan finally challenges the sentence imposed by the district court under the
sentencing guidelines. He argues that the district court erred by granting an
obstruction of justice enhancement based upon letters he wrote to family members
and by departing upward. The review of findings of fact at sentencing is for clear
error, and application of the guidelines to the facts is reviewed de novo. United
States v. Dillard, 370 F.3d 800, 804 (8th Cir. 2004). The reasonableness of the
district court's sentencing departures are reviewed for abuse of discretion, and
whether the district court based its departure on a permissible factor is reviewed de
novo. United States v. Long Turkey, 342 F.3d 856, 859-60 (8th Cir. 2003).

       The district court found that Mugan attempted to obstruct justice by sending
letters to his wife and other family members in which he solicited false and
exculpatory testimony. He wrote his wife in violation of a state no contact order and
repeatedly asked and demanded that she withdraw her earlier identification of him in
the photographs that were the subject of the prosecution, going so far as to suggest
she indicate "only 50%" certainty that he was the one pictured. A letter from Mugan
to his brother also emphasized his wife needed to claim uncertainty and requested
ideas about how to minimize a prior instance of his sexual contact with a minor.

                                        -11-
       Under USSG § 3C1.1, a two level enhancement should be applied if the court
finds a defendant "willfully obstructed or impeded, or attempted to obstruct or
impede, the administration of justice during the course of the investigation,
prosecution, or sentencing of the instant offense of conviction." U.S.S.G. § 3C1.1.
Obstruction includes both "threatening, intimidating, or otherwise unlawfully
influencing a co-defendant, witness, or juror, directly or indirectly, or attempting to
do so," and "committing, suborning, or attempting to suborn perjury." Id. cmt. n.4(a)-
(b).

       Mugan argues that the district court misconstrued his letters. At the sentencing
hearing Mugan testified that he was only seeking truthful testimony from all
involved. The district court disbelieved this testimony, and its credibility
determination is entitled to deference. United States v. Peck, 161 F.3d 1171, 1174
(8th Cir. 1998). Moreover, his letters do not read like his goal was the pursuit of the
truth. To the contrary, the letters solicited testimony to diminish evidence of his guilt
and to improve his sentencing posture. The district court did not err in enhancing
Mugan’s sentence.

       The district court's upward departure was based in part on Mugan’s use of
sleeping medication in committing his crime. The court relied on a letter Mugan
wrote to his wife about his offense in which he said that he had used “sleep medicine”
before taking pictures of his sexual intercourse with the daughter because he did not
want her to know what he had done. The district court found Mugan had drugged his
victim in order to facilitate his offense. The guidelines provide no specific
enhancement for the drugging of a victim, and the court found that Mugan’s drugging
of his daughter was an aggravating circumstance of a kind not accounted for in the
guidelines.

       At the sentencing hearing Mugan denied using the medication and claimed he
lied to his wife in order to dispel rumors that his daughter was a willing participant.

                                          -12-
According to Mugan, the government failed to rebut this testimony so the district
court's finding that medication was used was clearly erroneous. The district court was
in the best position to determine the credibility of Mugan's testimony, however. See
United States v. Holt, 149 F.3d 760, 762 (8th Cir. 1998). It was not clear error for it
to believe Mugan's earlier written statement, rather than the oral comments made at
the sentencing hearing. Mugan also contends that the Sentencing Commission must
have specifically considered and rejected an enhancement for defendants who use
chemicals to accomplish their way with a victim since the guidelines specifically
provide for an enhancement when a victim is physically restrained. See U.S.S.G. §§
3A1.3, 1B1.1 cmt. n.1(K). There is no indication in the guidelines that the
enhancement for physical restraint was intended to include the use of drugs to
facilitate sex abuse, and we conclude that Mugan's administration of sleep medication
to his daughter to accomplish his purpose was a permissible factor on which to depart
and that the district court’s departure was reasonable. 18 U.S.C. § 3553(b)(2)(A)(i).

        Mugan's last argument relates to the other basis for the upward departure, the
finding by the district court that his criminal history category of III failed to represent
the seriousness of his past conduct and future risk. This finding was based on the
testimony of three of Mugan's nieces. The first niece testified that Mugan molested
her at the age of fourteen, but no charges were filed. The second testified that Mugan
viewed a pornographic film with her and another minor girl; Mugan pled guilty to
contributing to the delinquency of a minor as a result. The third testified that Mugan
sexually assaulted her on three occasions; he pled guilty to simple assault. The
district court also found from Mugan's letters that he had taken "inappropriate
pictures" of another daughter from a former marriage. The court concluded that the
seriousness of these actions and the likelihood of future criminal conduct suggested
by them was not reflected in the minor convictions that resulted from the conduct,
thus justifying an upward departure under § 4A1.3.




                                           -13-
       Section 4A1.3 permits upward departures when there is "reliable information"
that the seriousness of the defendant's past crimes or the likelihood that he would
commit others was not fully reflected in his criminal history category. Mugan
contests the departure both factually and legally. First he contends that his nieces
were motivated to lie and that they gave conflicting testimony. The district court
believed their testimony, however, and we see no reason not to credit its
determination. See Holt, 149 F.3d at 762 (8th Cir. 1998). Mugan also argues that his
prior conduct does not demonstrate the level of incorrigibility or dangerousness
required under § 4A1.3. While Mugan's prior criminal history is not as extensive as
some, his consistent pattern of sexual misconduct indicates a likelihood of future
sexual abuse not reflected in his criminal history category. See U.S.S.G. § 4A1.3 cmt.
n.2(B) ("[T]he nature of the prior offenses rather than simply their number is often
more indicative of the seriousness of the defendant's criminal record."). The district
court did not err in departing upward on this basis.

                                          V.

      Because Congress did not exceed its authority under the Commerce Clause in
enacting the statutes under which Mugan was charged in this case, because Mugan
did not offer a fair and just reason for the withdrawal of his guilty plea, and because
Mugan has not shown that the district court erred in sentencing, we affirm the
judgment of the district court.

                          __________________________




                                         -14-
