     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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   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.




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