                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                    _____________________________
                                                               FILED
                              No. 04-11052           U.S. COURT OF APPEALS
                                                       ELEVENTH CIRCUIT
                    _____________________________           June 14, 2006
                                                        THOMAS K. KAHN
                    D. C. Docket No. 02-00549 CR-S-M          CLERK

UNITED STATES OF AMERICA,


                                                Plaintiff-Appellant,
     versus


JUSTIN WAYNE MATTHEWS,

                                                Defendant-Appellee.


              _________________________________________

                 Appeal from the United States District Court
                    for the Northern District of Alabama
              _________________________________________

                              (June 14, 2006)

                    ON REMAND FROM THE
              SUPREME COURT OF THE UNITED STATES


Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.

PER CURIAM:
       This case is before us on remand from the Supreme Court to reconsider our

decision in the light of Gonzales v. Raich, 125 S.Ct. 2195 (2005). The district

court dismissed charges against Justin Wayne Matthews for possessing and

producing child pornography, in violation of 18 U.S.C. 2251(a) and 18 U.S.C.

2252A(a)(5)(B),1 as unconstitutional exercises of Congress’s Commerce power.

We affirmed, considering two earlier decisions from this Circuit. See United

States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (concluding the federal

government may not criminalize the possession of child pornography when that

pornography is not shown to have traveled in interstate commerce); United States

v. Smith, 402 F.3d 1303 (11th Cir. 2005) (deciding the federal government may

not criminalize purely intrastate, non-commercial production of child pornography

in case where only link to interstate commerce was that the photographic

equipment used to film the pornography had traveled in interstate commerce).

Both of these precedential cases were also remanded by the Supreme Court for

reconsideration in the light of Raich.

       We address first Matthews’s challenges to the statutes as they apply to his

situation. In the present case, the videotape on which the images were stored and



  1
    Matthews plead guilty to the possession and production charges, pending a ruling on his motion
to dismiss for lack of jurisdiction.

                                                2
the camera used to film the images -- but not the images themselves -- had traveled

in interstate commerce. Matthews argues the statutes are unconstitutional as

applied to him because his acts did not substantially affect interstate commerce.

       This Circuit has addressed previously this factual situation for the

possession statute, 18 U.S.C. § 2252A(a)(5)(B). Upon reconsideration, United

States v. Maxwell, 446 F.3d 1210, 1211-12 (11th Cir. 2006), determined that the

federal government may criminalize the intrastate possession of child pornography

when the computer disks on which the images were stored, but not the images

themselves, have traveled in interstate commerce. Thus, we vacate the district

court’s dismissal of the possession charge against Matthews.

       This Circuit has not addressed previously this situation for the production

statute, 18 U.S.C. § 2251(a), in the light of Raich.2 Raich rejected a challenge to

the Controlled Substances Act (CSA) by intrastate growers and users of medical

marijuana. The Supreme Court said that Congress may regulate purely local

intrastate activities if they are part of an “economic ‘class of activities’ that have a

substantial effect on interstate commerce.” Raich, 125 S.Ct. at 2205. Congress

   2
    We note that under Raich the Fourth and Tenth Circuits have rejected similar challenges to 18
U.S.C. 2251(a). See United States v. Forrest, 429 F.3d 73, 76-79 (4th Cir. 2005) (determining under
Raich that 18 U.S.C. 2251(a), as applied to a defendant who used cameras manufactured in interstate
commerce to produce pornographic images of a minor, did not exceed Congress’s authority under
the Commerce Clause); United States v. Jeronimo-Bautista, 425 F.3d 1266, 1273 (10th Cir. 2005)
(same).

                                                3
needs only a rational basis for determining that such local activities substantially

affect interstate commerce. Id. at 2208. Thus, the Court determined that, because

the CSA regulated an economic class of activities and because Congress could

conclude rationally that home-consumed marijuana could be drawn into (and thus

affect) the interstate market, Congress could prohibit constitutionally the local

possession and use of marijuana, even in instances that had only a de minimus

impact on interstate commerce. Id. at 2206-07.

      The statutory scheme in the present case is, like the CSA, a comprehensive

regulatory scheme aimed at an economic class of activities. See S. Rep. No. 95-

438, at 5 (1977), reprinted in 1978 U.S.C.C.A.N. 40 (concluding that “child

pornography . . . ha[s] become [a] highly organized, multimillion dollar industr[y]

that operate[s] on a nationwide scale.”); Raich, 125 S.Ct. at 2198

(“[Q]uintessentially economic activities [are] the production, distribution, and

consumption of commodities for which there is an established, and lucrative,

interstate market.”).

      We have no difficulty concluding that a rational basis existed for Congress

to conclude that homemade child pornography would find its way into interstate

commerce. See H.R. Rep. No. 98-536, at 17, reprinted in 1984 U.S.C.C.A.N. 492,

508 (“Generally, the domestic material is of the ‘homemade’ variety, while the

                                          4
imported material is produced by commercial dealers.”); Pub. L. No. 104-208, §

121, 110 Stat. 3009, 3009-26 (1996) (“[T]he existence of and traffic in child

pornographic images . . . inflames the desires of child molesters, pedophiles, and

child pornographers who prey on children, thereby increasing the creation and

distribution of child pornography and the sexual abuse and exploitation of actual

children who are victimized as a result of the existence and use of these

materials[.]”); see also Raich, 125 S.Ct. at 2211 (“Prohibiting the intrastate

possession or manufacture of an article of commerce is a rational (and commonly

utilized) means of regulating commerce in that product.”). Although Congress did

not find specifically facts about how the intrastate production of child

pornography substantially affects the interstate market, Raich noted that the Court

has “never required Congress to make particularized findings in order to

legislate.” Id. at 2208. Thus, Matthews’s as-applied challenge to section 2251(a)

must fail.

      We turn to Matthews’s facial challenges to the possession and production

statutes. The general rule is that to succeed on a facial challenge to a legislative

act, the challenger must show that no set of circumstances exists under which the

act would be valid. Benning v. Georgia, 391 F.3d 1299, 1304 (11th Cir. 2004).




                                           5
Our resolution of Matthews’s as-applied challenges to the statutes demonstrates

that Matthews is unable to meet this burden.

      We VACATE the decision of the district court and REMAND for further

proceedings consistent with this opinion.

      VACATED and REMANDED.




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