                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                                MAY 30, 2007
                               No. 06-15484                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                      D. C. Docket No. 06-00108-CR-T-N

UNITED STATES OF AMERICA,


                                                        Plaintiff-Appellee,

                                     versus

GARETT ALBERT DYKES,

                                                        Defendant-Appellant.


                         ________________________

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

                                 (May 30, 2007)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:

     Garett Albert Dykes appeals his conviction for sexual exploitation of a child.
See 18 U.S.C. § 2251(a). Dykes argues that section 2251(a) is unconstitutional

both on its face and as applied to his case on the ground that section 2251(a) is

beyond the power of Congress under the Commerce Clause. We affirm.

      We review the constitutionality of a challenged statute de novo. United

States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005).

      Dykes recorded a videotape of himself fondling the genitals of an eight-year-

old girl who was spending the night with his daughter. The recording occurred

wholly in the State of Alabama and remained there. The camera and videotape

used to produce the child pornography were manufactured outside the State of

Alabama. Dykes pleaded guilty to one count of sexual exploitation of a child and

reserved the right to argue on appeal that section 2251(a) is unconstitutional as

applied to his conduct.

      Dykes’s argument that section 2251(a) is unconstitutional is foreclosed by

our precedents. Section 2251(a) prohibits the production of child pornography

“using materials that have been mailed, shipped, or transported in interstate or

foreign commerce by any means.” In United States v. Maxwell, 446 F.3d 1210,

1218 (11th Cir. 2006), we held that “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



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interstate commerce.” In United States v. Smith, 459 F.3d 1276, 1285 (11th Cir.

2006), we held that “Congress could have rationally concluded that the inability to

regulate intrastate possession and production of child pornography would, in the

aggregate, undermine Congress’s regulation of the interstate child pornography

market,” and upheld the application of section 2251(a) to an individual who

produced pornographic photographs using Kodak paper and processing equipment

that had traveled interstate. In the light of Maxwell and Smith, Dykes’s argument

fails.

         Dykes’s conviction is

         AFFIRMED.




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