                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-4011
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Toby L. Rice,                           *
                                        * [UNPUBLISHED]
             Appellant.                 *
                                   ___________

                             Submitted: January 25, 2010
                                Filed: January 29, 2010
                                 ___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
                         ___________

PER CURIAM.

       Toby L. Rice pleaded guilty to producing child pornography, in violation of 18
U.S.C. § 2251(a) (Count 1); distributing child pornography over the internet, in
violation of 18 U.S.C. § 2252(a)(2) (Count 2); and possessing child pornography, in
violation of 18 U.S.C. § 2252(a)(4) (Count 3). The district court1 sentenced him to
240 months in prison on Counts 1 and 2, a concurrent sentence of 120 months in
prison on Count 3, and concurrent life terms of supervised release. In this appeal of
his convictions and sentences, counsel has filed a brief under Anders v. California,

      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
386 U.S. 738 (1967), and has moved to withdraw. In a pro se supplemental brief, Rice
argues that (1) sections 2251(a) and 2252(a) exceed Congress’s Commerce Clause
powers as applied to his case; (2) the district court was unaware of its full sentencing
authority, was confused, and gave the government undue sentencing power; (3) the
sentences are unreasonable; (4) child-pornography sentences violate the Eighth
Amendment; (5) the court erred in admitting sentencing evidence, and a government
witness gave misleading and erroneous testimony; (6) the government acted
vindictively and violated due process by forwarding to the court the final presentence
report (PSR) without allowing Rice to object; and (7) the victim’s change of clothes
between two photographs did not support a 5-level enhancement under U.S.S.G.
§ 4B1.5(b) for a pattern of activity involving prohibited sexual conduct.

       Rice’s arguments fail, and we reject them seriatim: (1) sections 2251(a) and
2252(a) do not exceed Congress’s Commerce Clause power as applied, see United
States v. Mugan, 441 F.3d 622, 627-30 (8th Cir. 2006); United States v. Bausch, 140
F.3d 739, 741 (8th Cir. 1998); (2) Rice submitted objections to the PSR, including its
final version, and he did not seek a continuance, see United States v. D’Andrea, 473
F.3d 859, 863 (8th Cir. 2007); (3) Rice has waived any argument that evidence was
improperly admitted, cf. United States v. Comstock, 531 F.3d 667, 675 (8th Cir.)
(where defense counsel stated “no objection” each time government moved to admit
evidence, defendant waived objection to admission of evidence), cert. denied, 129 S.
Ct. 590 (2008); (4) Rice’s assertion that the government witness’s testimony was
misleading and erroneous is entirely conclusory, cf. United States v. King, 518 F.3d
571, 575 (8th Cir. 2008) (district court’s assessment of witness credibility is virtually
unassailable on appeal); (5) the court did not err in applying section 4B1.5(b)(1), see
United States v. Aguilar, 512 F.3d 485, 487 (8th Cir.) (standard of review), cert.
denied, 129 S. Ct. 113 (2008), because Rice does not challenge the finding that he
engaged in prohibited sexual conduct, and the court did not clearly err in finding that
the conduct occurred on separate occasions, see United States v. Rojas, 520 F.3d 876,
883 (8th Cir. 2008); United States v. Peck, 496 F.3d 885, 890 (8th Cir. 2007) (“pattern

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of activity” occurs when defendant engages in prohibited sexual conduct with minor
on at least two separate occasions); (6) there is no indication that the district court was
unaware of its sentencing authority, was confused, or gave the government too much
power; and (7) the sentences are not substantively unreasonable, see Gall v. United
States, 552 U.S. 38, 51 (2007) (abuse-of-discretion standard); United States v.
Raplinger, 555 F.3d 687, 695 (8th Cir.) (district court did not abuse discretion in
imposing prison sentence of 457 months in child pornography case where record
indicated court considered all relevant factors), cert. denied, 129 S. Ct. 2814 (2009);
and do not violate the Eighth Amendment, see United States v. Paton, 535 F.3d 829,
837 (8th Cir. 2008).

      Finally, having reviewed the record independently under Penson v. Ohio, 488
U.S. 75 (1988), we have found no nonfrivolous issues. Accordingly, we grant
counsel’s motion to withdraw, and we affirm the district court’s judgment.
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