                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 August 26, 2005

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-40042
                         Summary Calendar


UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

BRIAN THOMAS HILL,

                                    Defendant-Appellant.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                         (4:04-CR-57-ALL)
                       --------------------

Before JONES, WIENER, and PRADO, Circuit Judges.

PER CURIAM:*

     Defendant-Appellant Brian Thomas Hill appeals his jury-trial

conviction for possessing one or more visual images depicting

minors engaged in sexually explicit conduct, in violation of 18

U.S.C. § 2252(a)(4).

     Hill challenges the sufficiency of the evidence to support his

conviction.    We view all evidence and all reasonable inferences

drawn from it in the light most favorable to the verdict to

determine whether a rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt.

     *
       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this opinion should not be published and is not precedent except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.
United States v. Smith, 296 F.3d 344, 346 (5th Cir. 2002).                         Hill

contends that the evidence presented at trial was insufficient to

prove beyond a reasonable doubt that the images depicted “sexually

explicit conduct.”     For the purpose of 18 U.S.C. § 2252, 18 U.S.C.

§ 2256(A)(4)(v) defines “sexually explicit conduct” as, inter alia,

“lascivious    exhibition      of   the    genitals   or       pubic   area   of    any

person.” We have applied the six-factor test from United States v.

Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d, 813 F.2d 1231 (9th

Cir. 1987), to determine whether the images in Government exhibits

18, 21a, 21e, and 21f constitute such lascivious exhibitions.                        As

these images indisputably meet most if not all of the Dost factors,

a rational juror could have found beyond a reasonable doubt that

the images depicted sexually explicit conduct.

     Hill     also   asserts    that       18   U.S.C.     §    2256(2)(A)(v)        is

unconstitutional as applied to him because the term “lascivious” is

too vague. We review the constitutionality of a federal statute de

novo.   United States v. Rasco, 123 F.3d 222, 226 (5th Cir. 1977).

To show that 18 U.S.C. § 2256(2)(A)(v) is unconstitutionally vague,

Hill “must show that he could not have reasonably understood that

his conduct was prohibited by the statute.”                      United States v.

Wicker, 933 F.2d 284, 288 (5th Cir. 1991)(citation omitted).                         As

Hill concedes, the Supreme Court held in United States v. X-

Citement Video, 513 U.S. 64, 78-79 (1994), the Supreme Court held

that the use of the term “lascivious” to define prohibited material

is constitutional on its face.            “Lascivious” is defined as tending

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to excite lust; lewd; indecent; obscene; sexual impurity; tending

to deprave the morals in respect to sexual relations; licentious.

Grimes, 244 F.3d at 381 (citing BLACKS LAW DICTIONARY 882 (6th ed.

1990)).     As used in the child pornography statute, the ordinary

meaning of "lascivious exhibition" of the genitals or pubic area

“means a depiction which displays or brings forth to view the

genitals or pubic area of children, in order to excite lustfulness

or sexual stimulation in the viewer.”   Id.

     When the images (such as those discussed above) and Hill’s

testimony that he obtained these images because of his interest in

child pornography are viewed together with the “commonsensical”

meaning of “lascivious,” Hill, or anyone in these circumstances,

could reasonably understand that the images contained lascivious

exhibitions of the minors’ genitalia or pubic areas.     Under the

facts of this case, the statute is not unconstitutionally vague as

applied.

AFFIRMED.




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