     Case: 15-10894    Document: 00513642838       Page: 1   Date Filed: 08/18/2016




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

                                    No. 15-10894                              FILED
                                                                        August 18, 2016
                                                                         Lyle W. Cayce
UNITED STATES OF AMERICA,                                                     Clerk

             Plaintiff - Appellee

v.

JEFFREY WILLIAM MCCALL,

             Defendant - Appellant




                 Appeal from the United States District Court
                      for the Northern District of Texas


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
CARL E. STEWART, Chief Judge:
      Jeffrey McCall (“McCall”) pleaded guilty to one count of producing and
attempting to produce child pornography in violation of 18 U.S.C. §§ 2251(a)
and 2.    He now appeals, arguing that the district court plainly erred in
accepting his guilty plea because the supporting factual resume was
insufficient to show a violation of § 2251(a). We AFFIRM.
                               BACKGROUND
      In 2013, McCall was released from state custody after serving thirteen
years of a fifteen-year sentence for the aggravated sexual assault of a five-year-
old girl. He then moved in with his mother, stepfather, and two teenage nieces.
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In April 2015, he hid his cellular telephone in the family’s shared bathroom
and turned on the video-recording function of the phone before his 14-year-old
niece, Jane Doe (“Doe”), entered the bathroom to shower. The phone captured
over thirty-three minutes of graphic footage.              We adopt the timestamped
narrative of the video in the Government’s brief, which McCall does not
dispute. 1 To summarize, Doe is seen undressing, grooming her pubic area, and
preparing to shower, and then later, exiting the shower and getting dressed.
At times, she is partially nude, and at other times, she is fully nude with her
breasts, genitals, and/or pubic area visible. The recording ends when Doe
noticed the camera and called an adult into the room.
       When confronted, McCall used a ruse to get the phone back—he told his
mother and his stepfather that he had only been recording himself in the
bathroom satisfying a women’s underwear fetish. He then transferred the
phone’s memory card to another device so that he could use the video to create
still images of Doe and modify them using zoom, exposures, and filters. McCall
acknowledged to a probation officer that he intentionally made still shots that
focused and zoomed in on Doe’s breasts and genitals and that he created the
video and stills to arouse himself during masturbation.
       McCall self-reported his crime and pleaded guilty to one count of
producing and attempting to produce child pornography in violation of 18
U.S.C. §§ 2251(a) and 2. 2 As part of his plea, he admitted, inter alia, that he


       1 We initially denied the Government’s motion to supplement the record on appeal
with the video that formed the basis for McCall’s conviction. After oral argument, the court
sua sponte revisited and granted the motion. McCall does not dispute the Government’s
account of what the video depicts; rather, as discussed herein, his argument focuses on
whether what is depicted amounts to “sexually explicit conduct” within the meaning of
§ 2251(a).
       2 As part of his plea agreement, McCall waived the right to appeal his conviction and

sentence except on limited grounds. The Government does not argue that this waiver bars
the challenges discussed herein. See United States v. Trejo, 610 F.3d 308, 312 (5th Cir. 2010)
(“The Government correctly does not seek to enforce the waiver [in Defendant’s plea
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                                       No. 15-10894
“obtained the video of [Doe] by hiding his cellular telephone in the bathroom
and turning on the video camera when [she] went into the bathroom to take a
shower;” that he “carefully positioned and aimed the lens of the camera with
the intent of obtaining images of the genitals/pubic area of [Doe], as well as her
breasts; that “a part of the video depicts [Doe’s] genitals and pubic area;” and
that the phone he used was manufactured outside of Texas.
       McCall’s Pre-Sentence Investigation Report calculated a Guidelines
range of 262–327 months’ imprisonment.                   Defense counsel moved for a
downward variance based on McCall’s voluntary reporting of his crime and
United States v. Steen, 634 F.3d 822 (5th Cir. 2011)—counsel suggested that
McCall’s surreptitious recording was similar to that in Steen, but carefully
stated his view that “the fact that [McCall] was well aware of the victim’s age;
focused the camera in such a way as to capture her genitals and breasts; and
manipulated the images afterward in order to enhance this focus [arguably]
took the production out of the realm of Steen.” Ultimately, the court imposed
a sentence of 200-months’ imprisonment—a downward variance of over five-
years from the bottom-end of the recommended Guidelines-range—to be
followed by a period of supervised release. McCall timely appealed.
                                      DISCUSSION
       McCall raises two errors on appeal. First, he asserts that the district
court erred in accepting his plea because the video in question did not satisfy
the “sexually explicit conduct” element of § 2251(a). Second, he argues that
the court erred in accepting his plea because the fact that the phone he used to
record Doe had moved across state lines did not suffice to satisfy § 2251(a)’s
interstate commerce requirement. McCall concedes, and the record confirms,



agreement] because a valid waiver of appeal does not bar review of a claim that the factual
basis for a guilty plea fails to establish the essential elements of the crime of conviction.”).
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                                       No. 15-10894
that he did not object to the factual resume below. 3 Accordingly, our review is
for plain error. To show plain error, McCall must show (1) an error that is (2)
“clear or obvious, rather than subject to reasonable dispute” and that (3) affects
his substantial rights. United States v. Fields, 777 F.3d 799, 802 (5th Cir.
2015) (quoting Puckett v. United States, 556 U.S. 129, 135 (2009)). If McCall
satisfies these requirements, we have discretion to remedy the error if it
“seriously affects the fairness, integrity or public reputation of judicial
proceedings.” Id. (quoting Puckett, 556 U.S. at 135). “In assessing factual
sufficiency under the plain error standard, we may look beyond those facts
admitted by the defendant during the plea colloquy and scan the entire record
for facts supporting his conviction.” United States v. Trejo, 610 F.3d 308, 313
(5th Cir. 2010).
                                              A.
       We begin with McCall’s argument that the district court erred in
accepting his plea based on a failure of § 2251(a)’s “sexually explicit conduct”
element. Before accepting McCall’s plea, Federal Rule of Criminal Procedure
11 required the “district court . . . to make certain that the factual conduct
admitted by [McCall was] sufficient as a matter of law to establish a violation
of” § 2251(a). Id. at 313 (emphasis omitted). Pertinent here, this required the
court to ensure that McCall “use[d] a minor to engage in sexually explicit
conduct for the purpose of producing a visual depiction of that conduct.” Steen,
634 F.3d at 826 (citation and internal quotation marks omitted). “Sexually
explicit conduct” is defined by statute as, inter alia, “lascivious exhibition of
the genitals or pubic area of any person.” 18 U.S.C. § 2256(2)(A)(v).



       3 McCall cites Trejo and agrees with the Government that, in the absence of an
objection below, our review of the claimed inadequacy of his factual resume is for plain error;
however, he argues in passing “that the failure of a factual basis to admit an offense ought
not to be reviewed for plain error.” We are not persuaded.
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                                        No. 15-10894
       We have defined “lascivious exhibition” as “a depiction which displays or
brings forth to view in order to attract notice to the genitals or pubic area of
children, in order to excite lustfulness or sexual stimulation in the viewer.” 4
Steen, 634 F.3d at 828 (quoting United States v. Grimes, 244 F.3d 375, 381 (5th
Cir. 2001)). Moreover, we have applied the six factors from United States v.
Dost, 636 F. Supp. 828 (S.D. Cal. 1986), to aid in determining whether a
particular depiction is lascivious:
   1) whether the focal point of the visual depiction is on the child’s
      genitalia or pubic area;
   2) whether the setting of the visual depiction is sexually suggestive,
      i.e., in a place or pose generally associated with sexual activity;
   3) whether the child is depicted in an unnatural pose, or in
      inappropriate attire, considering the age of the child;
   4) whether the child is fully or partially clothed, or nude;
   5) whether the visual depiction suggests sexual coyness or a
      willingness to engage in sexual activity; [and]
   6) whether the visual depiction is intended or designed to elicit a
      sexual response in the viewer.
Steen, 634 F.3d at 826 (quoting Dost, 636 F. Supp. at 832). These factors—
called the “Dost factors”—are not exhaustive and no one factor is dispositive.
See id.
          In his brief, McCall expressly chooses not to discuss the Dost factors
seriatim or cumulatively. Rather, he argues that even if the Dost factors are
resolved against him, at most they show that the video of Doe was a “lascivious
image.” In his mind, this is not tantamount to the “lascivious exhibition”


       4 In a footnote to his brief, McCall distorts our definition of “lascivious exhibition” by
arguing that “[a] minor who showers without intent to appear in a recording is not displaying
or bringing forth anything” and is “[c]ertainly . . . not acting to attract notice or excite
lustfulness.” According to the plain language of Steen and Grimes, it is the depiction—not
the minor—that must bring forth the genitals or pubic area to excite or stimulate. See Steen,
634 F.3d at 826 (quoting Grimes, 244 F.3d at 281). McCall cites no case where we have held
or articulated a definition to the contrary.
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                                    No. 15-10894
required to support his conviction under Steen. By definition, such a novel
legal construct faces overwhelming hurdles on plain error review. See, e.g.,
Trejo, 610 F.3d at 319 (concluding that the novelty of a legal argument
“doom[ed] the case [on] plain error”).
      The differences between this case and Steen cannot be overstated;
indeed, as mentioned supra, McCall acknowledged many of these differences
to the district court in arguing for and receiving a five-year downward variance
on his sentence. Summarizing, Steen involved a defendant whose interest in
voyeurism led him to capture 1.5 seconds of film depicting the pubic region of
a girl he did not know to be a minor. See 634 F.3d at 827–28. Here, McCall
does not argue that an interest in voyeurism, rather than his documented
sexual interest in children, led him to record Doe. See id. at 827 (noting that
the Dost “factors have never been deployed where a defendant’s conduct . . .
proved to be no more than voyeurism”). Rather, the record unequivocally
establishes that he purposefully filmed Doe’s breasts, genitals, and pubic area
for a number of minutes and for the admitted purpose of satisfying himself
during masturbation. Given these qualitative and quantitative distinctions,
this case is not Steen.
      Notwithstanding all of these differences, McCall relies on Steen to argue
that the video does not depict “lascivious exhibition” because Doe was not
aware that she was being recorded; she did not intend to display herself; and
the video does not show Doe engaging in an affirmative sexual act.                 The
Government responds that Steen adopted no such standard. 5 We agree with
the Government—Steen did not adopt a special per se rule for surreptitious




      5  The Government also argues that McCall pleaded to the production and attempted
production of child pornography, and there is no question that he attempted to produce a
depiction that met the statutory standard. We need not reach this issue.
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                                       No. 15-10894
recording cases that requires an affirmative display or sexual act by a minor. 6
See, e.g., United States v. Romero, 558 F. App’x 501, 504 (5th Cir. 2015) (per
curiam) (Higginson, J., dissenting) (“In United States v. Steen—a § 2251(a) case
in which the defendant surreptitiously recorded a minor at a tanning booth—
this court did not adopt a per se rule requiring that the minor affirmatively
commit a sexual act.”). Because Steen does not compel the interpretation of §
2251(a) and “lascivious exhibition” that McCall now advances, he cannot show
that the district court plainly erred in accepting his plea. See, e.g., United
States v.     Alvarado-Casas, 715 F.3d 945, 951–53 & n.7 (5th Cir. 2013)
(reiterating that “factual basis error is not plain” unless a defendant’s
interpretation of a statute is compelled by, inter alia, a “binding judicial
construction of it”).
                                              B.
       McCall next argues that the court plainly erred in accepting his guilty
plea because his admission that the phone he used to record Doe was
manufactured outside of Texas was insufficient to satisfy § 2251(a)’s interstate
commerce requirement.           In his brief, he concedes that this argument is
foreclosed by our case law. We agree and reject McCall’s argument based on
the cases cited and analysis articulated in United States v. Looney, 606 F. App’x
744 (5th Cir. 2015) (per curiam), cert. denied, 136 S. Ct. 191 (2015).
                                     CONCLUSION
       For the foregoing reasons, we AFFIRM.




       6  A number of circuits to consider the issue have not imposed such a requirement in
§ 2251(a) cases. See Romero, 558 F. App’x at 503–04 (collecting cases); see also, e.g., United
States v. Holmes, 814 F.3d 1246, 1252 (11th Cir. 2016) (“Today, we join the Eighth, Ninth,
and Tenth Circuits and hold that a lascivious exhibition may be created by an individual who
surreptitiously videos or photographs a minor and later captures or edits a depiction, even
when the original depiction is one of an innocent child acting innocently.”), petition for cert.
filed, (U.S. June 2, 2016) (No. 15-9571).
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