     Case: 16-10161      Document: 00513666197         Page: 1    Date Filed: 09/06/2016




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

                                    No. 16-10161
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        September 6, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk


UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

versus

ROBERT BRUCE LLOYD,

                                                 Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:15-CR-138-1




Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM: *

       Robert Lloyd appeals his conviction of receipt of child pornography in
violation of 18 U.S.C. § 2252A(a)(2). In the factual basis for his guilty plea,

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 16-10161

Lloyd admitted he “knowingly received child pornography that had been
mailed, shipped, and transported in interstate commerce by any means, includ-
ing by computer.”

      Lloyd asserts that § 2252A(a)(2) should be construed as requiring the
government to prove, or the defendant to admit, that the “offense caused the
[child pornography] to move in interstate commerce, or, at least, . . . that the
relevant [child pornography] moved in interstate commerce at a time reasona-
bly near the offense.” Relying on Bond v. United States, 134 S. Ct. 2077 (2014),
Lloyd contends that a conviction in the absence of such proof impermissibly
intrudes on state police power. He further urges that the factual basis for his
guilty plea was insufficient under Federal Rule of Criminal Procedure 11 be-
cause he did not admit to such facts.

      “Rule 11(b)(3) requires a district court taking a guilty plea to make cer-
tain that the factual conduct admitted by the defendant is sufficient as a matter
of law to establish a violation of the statute to which he entered his plea.”
United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (footnote omitted).
Plain error review applies to Lloyd’s forfeited objection to the factual basis for
his guilty plea. See id. To establish plain error, Lloyd must show a forfeited
error that is clear or obvious and that affects his substantial rights. See Puckett
v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, this
court has the discretion to correct the error but only if it seriously affects the
fairness, integrity, or public reputation of judicial proceedings. See id.

      The Commerce Clause authorizes Congress to prohibit local, intrastate
possession and production of child pornography where the materials used in
the production were moved in interstate commerce. See United States v. Dick-
son, 632 F.3d 186, 192 (5th Cir. 2011); United States v. Kallestad, 236 F.3d 225,
226–31 (5th Cir. 2000). Bond did not abrogate the holdings of those cases. As


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                                  No. 16-10161

Lloyd concedes, the district court’s finding that there was a sufficient factual
basis for his guilty plea was not a clear or obvious error in light of this caselaw.
See Puckett, 556 U.S. at 135. Lloyd raises the issue to preserve it for further
review.

      Alternatively, Lloyd asserts that Kallestad was wrongly decided and that
the Commerce Clause does not authorize Congress to impose federal criminal
liability where the defendant’s conduct is tenuously related to interstate com-
merce. He also claims, in the alternative, that plain error review should not
apply to his forfeited objection to the factual basis of his guilty plea. Because
one panel of this court may not overrule the decision of another absent a super-
seding en banc or Supreme Court decision, United States v. Lipscomb, 299 F.3d
303, 313 & n.34 (5th Cir. 2002), Lloyd is correct that these issues are foreclosed.

      The judgment is AFFIRMED. The government’s motions for summary
affirmance and, alternatively, for an extension of time to file its brief, are
DENIED.




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