                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         August 1, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                           Clerk of Court

 U N ITED STA TES O F A M ER ICA,

          Plaintiff - Appellee,

 v.                                                        No. 05-8041
                                                            (W yoming)
 W ILLIA M M cNEAL POUNTNEY,                         (D.Ct. No. 04-CR-220-J)

          Defendant - Appellant.



                              OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On November 16, 2004, W illiam Pountney was indicted for the production

of child pornography in violation of 18 U.S.C. § 2251(a), (e) (Count 1) and




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
transportation of a minor with intent to engage in criminal sexual activity in

violation of 18 U.S.C. § 2423(a) (Count 2). On February 17, 2005, Pountney

filed a motion to dismiss Count 1 for lack of federal jurisdiction. He argued 18

U.S.C. § 2251 was facially unconstitutional or, in the alternative, unconstitutional

as applied to him. Pountney entered a conditional plea of guilty to Count 1 on

February 25, 2005, reserving the right to appeal in the event the district court

denied his motion to dismiss. On M ay 4, 2005, the district court sentenced

Pountney to 180 months imprisonment. On June 1, 2005, the district court issued

its written denial of Pountney’s motion to dismiss. Pountney now challenges the

district court’s determination that 18 U.S.C. § 2251 is constitutional both on its

face and as applied to his circumstances. Exercising jurisdiction pursuant to 28

U.S.C. § 1291, we AFFIRM .

                                    Background

      On October 21, 2004, the Cheyenne Wyoming Police Department received

a report regarding an alleged sexual assault of a fourteen-year-old female by a

man she met over the Internet. During the course of the investigation, officers

discovered phone records revealing several hours of conversations between the

victim and Pountney and a picture of him on her computer. After obtaining a

search warrant for Pountney’s residence and automobile, law enforcement agents

conducted a search. Among the items discovered were approximately five

sexually explicit photographs of the victim located under Pountney’s mattress.

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He had produced the photographs using a digital camera, downloading the images

to a computer and then printing them on his home printer. Pountney concedes the

camera and other materials used to produce the photographs had been transported

across state lines. There is no evidence, however, that the photographs

themselves ever entered or w ere intended to enter interstate or foreign commerce.

                                    Discussion

      Pountney claims the district court erred in denying his motion to dismiss

Count 1 by concluding 18 U.S.C. § 2251(a) is facially constitutional and

constitutional as applied to him. In considering a challenge to the

constitutionality of a statute, we review the district court’s ruling de novo. United

States v. Jeronimo-Bautista, 425 F.3d 1266, 1268 (10th Cir. 2005), cert. denied,

126 S.Ct 177 (2006). Pountney claims his local production of pornographic

images of a child, absent any intent to distribute the images in any fashion, did

not substantially affect interstate commerce, and therefore his actions were

outside of Congress’ regulatory authority under its Commerce Clause powers.

W e need not address Pountney’s arguments in great detail. Rather, we refer to

three very recent decisions by this Court which directly foreclose each of

Pountney’s arguments. See United States v. Grim mett, 439 F.3d 1263 (10th Cir.

2006) (challenging the constitutionality of § 2251(a) on its face and “as-

applied”); United States v. Croxford, 170 Fed.Appx. 31 (10th Cir. 2006)

(unpublished) (same); Jeronimo-Bautista, 425 F.3d 1266 (“as-applied” challenge).

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1.    Facial Challenge

      In his charge that 18 U.S.C. § 2251(a) is facially unconstitutional, Pountney

claims Congress lacks the power under the Commerce Clause to proscribe the

local intrastate production of child pornography under any circumstances because

such actions do not have a substantial effect on interstate commerce. See

Gonzales v. Raich, 545 U.S. 1, 125 S.Ct. 2195, 2205 (2005) (“Our case law firmly

establishes Congress’ power to regulate purely local activities that are part of an

economic ‘class of activities’ that have a substantial effect on interstate

commerce”). W hether a statute regulates an activity that substantially affects

interstate commerce is determined by considering four factors: (1) whether the

regulated activity is economic in nature; (2) whether the statute contains an

express jurisdictional element limiting its regulatory reach to activities that affect

interstate commerce; (3) whether Congress has spoken about the activity’s effect

on interstate commerce; and (4) whether the link between the prohibited activity

and its effect on interstate commerce is attenuated. See United States v.

M orrison, 529 U.S. 598, 609-12 (2000).

      Pountney argues 18 U.S.C. § 2251(a) is facially unconstitutional because it

fails under each of these factors. H e argues: 1) the local production of child

pornography is not economic or commercial activity as no depictions are sold,

traded or exchanged; 2) the statute’s jurisdictional element does not sufficiently

limit the statute’s reach; 3) Congress has not addressed whether the local

                                          -4-
production of child pornography for personal use has an effect on interstate

comm erce; and 4) the link between purely local child pornography and its effect

on interstate commerce is attenuated.

      However, in the time since Pountney raised these arguments we have

determined “that § 2251 is directed at an activity that is economic in nature.”

Grim mett, 439 F.3d at 1272; see also Croxford, 170 Fed.Appx. at 39; Jeronimo-

Bautista, 425 F.3d at 1271. Our recent opinions have also thoroughly reviewed

the legislative history of the statute and concluded “Congress’ explicit findings

regarding the extensive national market in child pornography and the need to

diminish that national market support the contention that prohibiting the

production of child pornography at the local level helps to further the

Congressional goal.” Jeronimo-Bautista, 425 F.3d at 1271 (quotations omitted);

see Grim mett, 439 F.3d at 1272; Croxford, 170 Fed.Appx. at 38. In addition,

based largely on the Supreme Court’s decisions in Wickard v. Filburn, 317 U.S.

111 (1942), and Raich, supra, we have confirmed that Congress could rationally

conclude that local production of child pornography, if left unregulated, may in

the aggregate have “a substantial effect on supply and demand in the national

market.” Jeronimo-Bautista, 425 F.3d at 1273 (quotations omitted). Finally,

because we have determined production of intrastate pornography has a

substantial effect on interstate commerce, Pountney’s challenge to § 2251’s

jurisdictional limitations is unavailing. Grim mett, 439 F.3d at 1272 (“Because w e

                                         -5-
conclude . . . that M r. Grimmett’s production of intrastate pornography has a

substantial impact on interstate commerce, any failure of the jurisdictional

element effectively to limit the reach of the statute is not determinative.”)

(quotations omitted); see Croxford, 170 Fed.Appx. at 41-42; Jeronimo-Bautista,

425 F.3d at 1273 n.4. Consequently, Pountney’s facial constitutional challenge

fails.

                                  As-Applied Challenge

         In the alternative, Pountney argues that even if § 2251 is facially

constitutional, it is unconstitutional as applied to his conduct, “i.e., even if

Congress has the power to reach some offenses, it is not empow ered to reach

conduct like his.” Grim mett, 439 F.3d at 1271. For the same reasons Pountney’s

facial challenge failed, this claim also fails.

         The fact that [Pountney] neither shipped the materials interstate nor
         intended to benefit com mercially from his conduct is of no moment.
         Congress’ decision to deem illegal [Pountney’s] local production of
         child pornography represents a rational determination that such local
         activities constitute an essential part of the interstate market for child
         pornography that is well within Congress’ pow er to regulate. Because
         § 2251(a) is a legitimate exercise of Congress’ power as applied to
         [Pountney’s] conduct, his challenge fails.

Id. at 1273 (citations and quotations omitted); see Jeronimo-Bautista, 425 F.3d

at 1273.




                                            -6-
A FFIRME D.



              Entered by the C ourt:

              Terrence L. O ’Brien
              United States Circuit Judge




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