                                                           [DO NOT PUBLISH]

               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                No. 06-11886                SEPTEMBER 22, 2006
                            Non-Argument Calendar            THOMAS K. KAHN
                          ________________________               CLERK


                  D. C. Docket No. 05-00092-CR-FTM-29-SPC

UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                     versus

WILLIAM ALLEN LANE,

                                                     Defendant-Appellant.

                          ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                              (September 22, 2006)

Before CARNES, MARCUS and PRYOR, Circuit Judges.

PER CURIAM:

      William Lane appeals his conviction for transporting child pornography, in

violation of 18 U.S.C. § 2252(a)(1) and (b)(1). On appeal, Lane argues that the

district court lacked jurisdiction over his case because his conduct could not be
proscribed consistent with the limits of the Commerce Clause. He asserts that his

distribution of child pornography over the internet was purely intrastate, and

Congress’s power to regulate the “use” of the “channels” of interstate commerce to

prevent immoral or injurious uses does not extend to the regulation of

“instrumentalities” of commerce.     According to Lane, his internet conduct was

purely intrastate and involved use of an “instrumentality” of commerce, rather than

a “channel” of commerce. After careful review, we affirm.

      Because Lane raises his Commerce Clause argument for the first time on

appeal, our review is for plain error. See United States v. Peters, 403 F.3d 1263,

1270-71 (11th Cir. 2005) (reviewing for plain error defendant’s challenge to his

conviction on the ground that 18 U.S.C. § 922(d)(1) exceeded Congress’s

Commerce Clause power). To demonstrate plain error, Lane “must show that: (1)

an error occurred; (2) the error was plain; (3) it affected his substantial rights; and

(4) it seriously affected the fairness of the judicial proceedings.” See United States

v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). An error is not plain unless it

is contrary to precedent directly resolving a legal issue. United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      The relevant facts are straightforward.      On August 31, 2005, Lane was

indicted for possessing child pornography (Count One), in violation of 18 U.S.C. §



                                          2
2252(a)(4)(B) and (b)(2), and transporting child pornography (Count Two), in

violation of 18 U.S.C. § 2252(a)(1) and (b)(2). In a written plea agreement, Lane

pled guilty to Count Two and the government dismissed Count One.

         In the agreement, Lane also stipulated to a factual basis for his plea.

According to this stipulation, on or about August 26, 2005, Lane knowingly

transported child pornography in interstate commerce by sending, via his internet

service provider, America Online (AOL), which is located in Virginia, fourteen

images of child pornography, including images showing prepubescent males

engaged in fondling, fellatio, and anal intercourse. Lane, who lived in North Fort

Myers, sent the child pornography to Richard Franklin, who also lived in North

Fort Myers and who subsequently notified the authorities. Later that same day,

Lane told Franklin that he had pictures of children ranging from six to sixteen

years old, and that he had made two computer disks for Franklin, one containing

about 400 pictures and the other containing about 350 pictures. Lane subsequently

told Franklin not to download the images on his computer, but to keep them on the

disks.     Lane also indicated that, in all, he had about 4,000 to 5,000 child

pornographic images. After his arrest, Lane told authorities that he had obtained

the images by searching an internet site maintained by Yahoo, which is located in




                                         3
California. The district court accepted Lane’s plea, and sentenced him to a 240-

month term of imprisonment. This appeal followed.

      The U.S. Constitution gives Congress the power “[t]o regulate Commerce

with foreign Nations, and among the several States, and with the Indian Tribes.”

U.S. Const. Art. I, § 8, Cl 3. The Supreme Court has identified the following three

broad categories of activity that Congress may regulate under the Commerce

power: (1) “the use of the channels of interstate commerce;” (2) “the

instrumentalities of interstate commerce, or persons or things in interstate

commerce;” and (3) “activities that substantially affect interstate commerce.”

United States v. Lopez, 514 U.S. 549, 558-559 (1995) (internal citations omitted).

      As for Lane’s argument that his conduct was purely intrastate in nature, we

have held that “Congress clearly has the power to regulate the internet, as it does

other instrumentalities and channels of interstate commerce, and to prohibit its use

for harmful or immoral purposes regardless of whether those purposes would have

a primarily intrastate impact.” United States v. Hornaday, 392 F.3d 1306, 1311

(11th Cir. 2004), cert. denied, 125 S. Ct. 2951 (2005); see also United States v.

Ballinger, 395 F.3d 1218, 1225 (11th Cir.) (en banc) (“Plainly, congressional

power to regulate the channels and instrumentalities of commerce includes the

power to prohibit their use for harmful purposes, even if the targeted harm itself



                                         4
occurs outside the flow of commerce and is purely local in nature.”), cert. denied,

126 S. Ct. 368 (2005).       Moreover, in order to effectuate a comprehensive scheme

to eliminate the market for child pornography, “it is within Congress’s authority to

regulate all intrastate possession of child pornography, not just that which has

traveled in interstate commerce or has been produced using materials that have

traveled in interstate commerce.” United States v. Maxwell, 446 F.3d 1210, 1217-

18 (11th Cir. 2006) (emphasis added) (applying Gonzalez v. Raich, 545 U.S. 1

(2005)).1

       Pursuant to our controlling precedent on the subject, Congress possessed the

power to proscribe Lane’s distribution of child pornography over the internet, and,

accordingly, the district court’s exercise of jurisdiction over this case was not

plainly erroneous.

       AFFIRMED.




       1
         We also observe that the factual stipulation belies Lane’s contention that his conduct
was purely intrastate in nature. Lane admitted both that he used AOL and that AOL was located in
Virginia. He further admitted that he used a Yahoo search engine and that Yahoo was located in
California. Cf. United States v. Drury, 396 F.3d 1303, 1312-13 (11th Cir.) (holding that routing of
cellular phone calls from Georgia, through Florida switching center, and then back to Georgia
satisfied interstate-nexus requirement), cert. denied, 126 S. Ct. 336 (2005).

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