                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                January 20, 2006
                               No. 05-13520                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 04-00162-CR-WS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

JOHN CLARK MACHTLEY, III,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                              (January 20, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     John Clark Machtley, III, appeals his conviction for possession of child
pornography that was transported through interstate commerce. Machtley argues

that the district court should have dismissed the indictment against him because his

possession of child pornography did not substantially affect interstate commerce.

Because Machtley admitted that the child pornography traveled in interstate

commerce, we affirm the denial of his motion to dismiss.

                                 BACKGROUND

      Machtley was indicted for knowing possession of a computer hard drive

containing more than three images of child pornography that had been mailed,

shipped, or transported in interstate commerce. 18 U.S.C. § 2252A(a)(5)(B).

Machtley moved to dismiss the indictment under United States v. Maxwell, 386

F.3d 1042 (11th Cir. 2004), vacated and remanded, 126 S. Ct. 321 (2005), on the

ground that the pornographic images did not substantially affect interstate

commerce. The district court denied this motion. Machtley pleaded guilty and

admitted that the images were downloaded from the internet. Machtley reserved

for appeal his challenge to the constitutionality of the indictment. Before his

sentencing, Machtley filed a renewed motion to dismiss on the same interstate

commerce grounds, which the district court denied. The district court sentenced

Machtley to 27 months of imprisonment and three years of supervised release.




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                           STANDARD OF REVIEW

      We review a denial by the district court of a motion to dismiss an indictment

for abuse of discretion. United States v. Waldon, 363 F.3d 1103, 1108 (11th Cir.

2004). Because Machtley claims there is a jurisdictional defect, we apply the same

standard of review as a sufficiency of the evidence challenge. United States v.

Clay, 355 F.3d 1281, 1286 (11th Cir. 2004). We review sufficiency of the

evidence challenges in criminal cases de novo, viewing the evidence in the light

most favorable to the government. United States v. Futrell, 209 F.3d 1286, 1288

(11th Cir. 2000).

                                  DISCUSSION

      Machtley argues that the government must prove that his possession of child

pornography had a substantial impact on interstate commerce. He relies on United

States v. Maxwell and United States v. Smith, 402 F.3d 1303 (11th Cir.), vacated

and remanded, 125 S. Ct. 2938 (2005). Both of these decisions were vacated by

the Supreme Court and remanded to be considered in the light of Gonzalez v.

Raich, 545 U.S. —, 125 S. Ct. 2195 (2005). They are no longer binding

precedents.

      Even if Maxwell and Smith had not been vacated by the Supreme Court,

they would not control our decision. Machtley’s argument erroneously relies on



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the second jurisdictional hook of section 2252A(a)(5)(B) – whether the materials

used to produce the images traveled in interstate commerce – rather than the first

jurisdictional hook –whether the images themselves traveled in interstate

commerce. See 18 U.S.C. § 2252A(a)(5)(B). In both Maxwell and Smith, we

considered whether materials that were eventually used for child pornography had

previously traveled in interstate commerce, which relied on the second

jurisdictional hook. See Maxwell, 386 F.3d at 1051, 1062 n.20; Smith, 402 F.3d at

1309. In Maxwell, we noted that “Congress wields the power to regulate interstate

child pornography, not because such pornography has a substantial effect on

interstate commerce in the aggregate, but because such pornography is a ‘thing in

interstate commerce.’ A substantial effect need not be established for this sort of

regulation . . . .” Id. at 1059 (quoting United States v. Lopez, 514 U.S. 549, 558,

115 S. Ct. 1624, 1629 (1995)). At his guilty plea hearing, Machtley admitted that

the pornographic images on his computer had traveled in interstate commerce,

which satisfied the first jurisdictional hook of section 2252A(a)(5)(B).

      The use of the internet to transmit or receive child pornography is interstate

commerce. In United States v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004),

we held that the internet is an instrumentality of interstate commerce, and that

Congress has the authority to regulate the internet to prohibit its use for harmful or



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immoral purposes, regardless of whether that use only impacts purely intrastate

conduct. Machtley admitted to use of the internet to receive images of child

pornography.

                                 CONCLUSION

      The denial of the district court of Machtley’s motion to dismiss is

      AFFIRMED.




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