                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
              IN THE UNITED STATES COURT OF APPEALS         January 28, 2004
                      FOR THE FIFTH CIRCUIT
                                                        Charles R. Fulbruge III
                                                                Clerk

                        No. 03-20181 c/w
                            03-20447
                        Summary Calendar



UNITED STATES OF AMERICA,

                                    Plaintiff-Appellee,

versus

WESLEY JOSEPH SLANINA, also known as Wesley J. Slanina,

                                    Defendant-Appellant.

                        --------------------
          Appeals from the United States District Court
                for the Southern District of Texas
                       USDC No. H-00-CR-75-1
                        --------------------

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

PER CURIAM:

     Wesley Joseph Slanina appeals the district court’s order on

remand to consider the impact of Ashcroft v. Free Speech

Coalition, 535 U.S. 234 (2002).   The district court held that the

general verdict finding Slanina guilty of two counts of

possession of child pornography was based on the validated

portions of the Child Pornography Act of 1996 and that the

evidence was sufficient to support a finding that the images

downloaded by Slanina were images of real children.    Slanina

argues that on remand, the Government did not present any
                           No. 03-20181
                                -2-

additional evidence, in particular expert testimony, to show that

the images downloaded by Slanina depicted real children and,

therefore, the Government failed to meet its burden of proof to

establish that the images depicted real children.    Slanina does

not argue that any of the images that he downloaded were virtual

children, and not real children.

     Free Speech Coalition did not establish a broad requirement

that the Government must present expert testimony to establish

that the unlawful image depicts a real child.   Three circuits

that have considered this issue take the same position.     See

United States v. Kimler, 335 F.3d 1132, 1142 (10th Cir.), cert.

denied, 72 U.S.L.W. 3392 (U.S. Dec. 8, 2003)(No. 03-7285); United

States v. Deaton, 328 F.3d 454, 455 (8th Cir. 2003) (per curiam)

(citing United States v. Vig, 167 F.3d 443, 449-50 (8th Cir.

1999)); United States v. Hall, 312 F.3d 1250, 1260 (11th Cir.

2002), cert. denied, 123 S. Ct. 1646 (2003).    “Juries are still

capable of distinguishing between real and virtual images; and

admissibility remains within the province of the sound discretion

of the trial judge.”   Kimler, 335 F.3d at 1142.    Therefore, the

Government was not required to present any additional evidence or

expert testimony to meet its burden of proof to show that the

images downloaded by Slanina depicted real children, and not

virtual children.   The district court, as the trier of fact in

this case, was capable of reviewing the evidence to determine
                            No. 03-20181
                                 -3-

whether the Government met its burden to show that the images

depicted real children.   See id.

     Slanina argues that the district court erred in denying his

motion to correct the written judgment to strike the conditions

that the district court did not orally pronounce at sentencing

pursuant to Rule 36 of the Federal Rules of Criminal Procedure.

Rule 36 provides that “the court may at any time correct a

clerical error in a judgment, order, or other part of the record,

or correct an error in the record arising from oversight or

omission.”   FED. R. CRIM. P. 36.   Slanina has not shown that the

discrepancy between the orally imposed sentence and the written

judgment is a clerical mistake or oversight which the district

court may correct pursuant to Rule 36.      See United States v.

Steen, 55 F.3d 1022, 1025-26 n.3 (5th Cir. 1995)(clerical error

under Rule 36 is limited to “‘mindless and mechanistic mistakes’”

and “‘minor shifting of facts.’”).     Therefore, he has not shown

that the district court erred in denying his Rule 36 motion.

     Slanina argues that the district court erred in denying his

motion to suppress the evidence obtained through a warrantless

search of his office computer.      Slanina concedes that the issue

is foreclosed because it was raised and decided in his original

direct appeal, but states that he is raising it to preserve it

for possible Supreme Court review.     “Under the law of the case

doctrine, an issue of law or fact decided on appeal may not be

reexamined either by the district court on remand or by the
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                                 -4-

appellate court on a subsequent appeal.”     United States v.

Becerra, 155 F.3d 740, 752 (5th Cir. 1998).    “[A] prior decision

of this court will be followed without re-examination” unless,

inter alia, “the decision was clearly erroneous and would work a

manifest injustice.”    Id. at 752-53.   “To be clearly erroneous, a

decision must strike [the court] as more than just maybe or

probably wrong; it must be dead wrong.”     Hopwood v. Texas, 236

F.3d 256, 272-73 (5th Cir. 2000).   Because Slanina has not shown

that the court’s previous decision affirming the denial of his

motion to suppress was “dead wrong,” this court will not

reexamine this issue.   See id.

     AFFIRMED.
