                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________                  FILED
                                                          U.S. COURT OF APPEALS
                               No. 08-11614                 ELEVENTH CIRCUIT
                                                             FEBRUARY 12, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                  D. C. Docket No. 07-00066-CR-4-RH/WCS

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

MOHAMMED ALI LITON,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        _________________________

                              (February 12, 2009)

Before CARNES, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Mohammed Ali Liton appeals his conviction for using the internet, a facility
or means of interstate commerce, to induce or entice a minor to engage in sexual

activity, in violation of 18 U.S.C. § 2422(b). The evidence at trial proved that

Liton, while in Florida, used the internet to set up a sexual liaison with someone

else, also in Florida, whom he thought was a fourteen-year-old female. The person

was actually a law enforcement officer posing as a fourteen year old. Liton was

arrested after he showed up at the meeting place in Florida. Liton contends that the

district court erred in denying his motion for a judgment of acquittal because

neither the Commerce Clause nor the Necessary and Proper Clause of the

Constitution authorized the application of 18 U.S.C. § 2422(b) to activities that

occurred wholly within a single state.

      When, as here, a constitutional argument is raised for the first time on

appeal, we review only for plain error. See United States v. Peters, 403 F.3d 1263,

1270-71 (11th Cir. 2005). To demonstrate plain error, Liton “must show that: (1)

an error occurred; (2) the error was plain; (3) it affected his substantial rights; and

(4) it seriously affected the fairness of the judicial proceedings.” See United States

v. Gresham, 325 F.3d 1262, 1265 (11th Cir. 2003). An error is not plain unless it

is contrary to precedent directly resolving a legal issue. United States v.

Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir. 2003).

      The United States Constitution gives Congress the power “[t]o regulate



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Commerce with foreign Nations, and among the several States, and with the Indian

Tribes.” U.S. Const. Art. I, § 8, Cl 3. The Supreme Court has identified the

following three broad categories of activity that Congress may regulate under its

Commerce power: (1) “the use of the channels of interstate commerce;” (2) “the

instrumentalities of interstate commerce, or persons or things in interstate

commerce;” and (3) “activities that substantially affect interstate commerce.”

United States v. Lopez, 514 U.S. 549, 558-559, 115 S. Ct. 1624, 1629-1630, 131 L.

Ed. 2d 626, 637 (1995) (internal citations omitted).

      We have held that the internet is an instrumentality of interstate commerce

and that “Congress clearly has the power to regulate the internet, as it does other

instrumentalities and channels of interstate commerce, and to prohibit its use for

harmful or immoral purposes regardless of whether those purposes would have a

primarily intrastate impact.” United States v. Hornday, 392 F.3d 1306, 1311 (11th

Cir. 2004). Moreover, use of an instrumentality of interstate commerce alone, even

without evidence that such use involved an interstate system, is “sufficient to

satisfy 18 U.S.C. § 2422(b)’s interstate-commerce element.” United States v.

Evans, 476 F.3d 1176, 1181 (11th Cir.), cert. denied, 218 S.Ct. (2007).

      Regarding the Necessary and Proper Clause, U.S. Const. Art. I, § 8, Cl. 18,

we have granted Congress “substantial leeway” to regulate purely intrastate



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activity, whether economic or not, that it deems to have the potential, in the

aggregate, to thwart the broader regulation of interstate economic activity. United

States v. Maxwell, 446 F.3d 1210, 1215 (11th Cir. 2006). In a case involving

possession of child pornography, we held that 18 U.S.C. § 2252A was a valid

exercise of Congress’s authority under the Necessary and Proper Clause to

effectuate its power to regulate commerce among the several states, regardless of

whether the pornography ever traveled in, or was produced using materials that had

ever traveled in, interstate commerce. Id. at 1218-19.

      This means that the district court did not err, much less plainly err, in

denying Liton’s motion for a judgment of acquittal on interstate commerce

grounds. The internet is an instrument or facility of interstate commerce and the

use of it, even if confined to purely intrastate transmissions, is sufficient to satisfy

§ 2422(b)’s interstate-commerce element. Moreover, Congress has the clear

authority under the Necessary and Proper Clause to proscribe Liton’s conduct,

even if it did occur purely within one state.

      AFFIRMED.




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