                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 19 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 08-30387

             Plaintiff - Appellee,               D.C. No. 9:07-CR-00047-DWM-1

  v.
                                                 MEMORANDUM *
RALPH LEON FOX,

             Defendant - Appellant.



                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                     Argued and Submitted November 3, 2009
                                Portland, Oregon

Before: KOZINSKI, Chief Judge, FISHER and PAEZ, Circuit Judges.

       Ralph Leon Fox appeals from his convictions for child sexual exploitation in

violation of 18 U.S.C. § 2251(a), receipt of child pornography in violation of 18

U.S.C. § 2252A(a)(2), and possession of child pornography in violation of 18




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S.C. § 2252A(a)(5)(B), and from the imposition of consecutive sentences

totaling 110 years.

      1. Fox contends that his conviction for both receiving and possessing child

pornography violates double jeopardy under United States v. Davenport, 519 F.3d

940, 947 (9th Cir. 2008). In light of the conduct proven on the child sexual

exploitation count, the trier of fact necessarily found at trial that Fox engaged in

conduct supporting a possession conviction that was distinct from the conduct

underlying the conviction for receiving child pornography. The allegations in the

possession count of the indictment were sufficient to support Fox’s possession

conviction on the basis of this separate conduct. Cf. United States v. Overton, 573

F.3d 679, 696 n.16 (9th Cir. 2009). Possession is not a lesser included offense of

exploitation, so there was no double jeopardy violation. Given the district court’s

implicit factual determinations at trial, we need not address Fox’s argument that

the district court engaged in impermissible post-verdict fact-finding.

      2. Fox next argues that Congress may not criminalize his non-commercial

intrastate production of child pornography under its Commerce Clause power.

This argument is foreclosed by United States v. McCalla, 545 F.3d 750, 753–56

(9th Cir. 2008).




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      3. Fox also challenges his § 2251(a) conviction on the ground that the

government failed to present sufficient evidence that the cameras Fox used to

produce child pornography had traveled in interstate or foreign commerce.

Introducing the cameras’ country-of-origin labels, which indicated they had been

manufactured overseas, sufficed to prove the cameras had moved in foreign

commerce. See United States v. Patterson, 820 F.2d 1524, 1526 (9th Cir. 1987).

      4. Finally, Fox challenges his 110-year sentence as unreasonable. We reject

his arguments. First, the district court did not abuse its discretion in concluding

that a longer-than-life sentence was necessary to serve the purposes of sentencing

listed in 18 U.S.C. § 3553(a); such a sentence can “reflect the seriousness of the

offense,” “promote respect for the law,” and “afford adequate deterrence to

criminal conduct.” 18 U.S.C. § 3553(a)(2)(A), (B).

      Second, contrary to Fox’s contentions, the district court did not

impermissibly focus on punishment to the exclusion of other § 3553(a) factors. In

setting Fox’s sentence, the district court also discussed the need to protect the

public, to deter similar crimes, and to provide Fox appropriate treatment.

      Third, the district court did not fail to account adequately for Fox’s mental

health problems and abuse as a child. The district court acknowledged Fox’s

mental health problems but concluded it was nevertheless appropriate to sentence


                                           3
Fox to the statutory maximums in light of Fox’s pattern of similar conduct and

admission that he could not be stopped. This was not an abuse of discretion.

      Finally, Fox does not have standing to challenge any applicable mandatory

minimum sentence; he was sentenced to a statutory maximum, not minimum. See

United States v. Johnson, 886 F.2d 1120, 1122 (9th Cir. 1989).




      AFFIRMED.




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