     Case: 17-10232      Document: 00514182765         Page: 1    Date Filed: 10/04/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 17-10232                                  FILED
                                  Summary Calendar                          October 4, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

RAFAEL ALMEIDA ZAPATA,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-134-1


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Rafael Almeida Zapata appeals his conviction for transporting and
shipping child pornography in violation of 18 U.S.C. § 2252A(a)(1). In the
factual basis for his guilty plea, Zapata admitted, inter alia, that he “knowingly
transported and shipped an image of child pornography … from the internet.”
He now argues that the factual basis is insufficient because he did not admit
that the offense involved media that moved images he produced over state


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10232     Document: 00514182765       Page: 2   Date Filed: 10/04/2017


                                   No. 17-10232

lines, as § 2252A(a)(1) should be construed to require.          Relying on 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 and offends the Commerce Clause.
      “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). Because Zapata did not raise this claim in the district court, we
review for plain error review only. See id. To establish plain error, Zapata
must show a forfeited error that is clear or obvious and 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
will do so 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). We have also held that the
internet is a means of facility of interstate commerce. United States v. Barlow,
568 F.3d 215, 220-21 (5th Cir. 2009). Bond did not abrogate these cases. See
United States v. McCall, 833 F.3d 560, 564 (5th Cir. 2016), cert. denied 137 S.
Ct. 686 (2017). As Zapata concedes, the district court’s finding that there was
sufficient factual bases for his guilty plea was not a clear or obvious error in
light of this caselaw. See Puckett, 556 U.S. at 135.




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                                No. 17-10232

      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.




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