                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4391


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CHRISTOPHER SCOTT CALEY,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.     G. Ross Anderson, Jr., Senior
District Judge. (8:05-cr-01270-GRA-1)


Submitted:    December 2, 2009              Decided:   December 14, 2009


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


David B. Betts, Columbia, South Carolina, for Appellant. W.
Walter Wilkins,   United  States  Attorney,  Maxwell Cauthen,
Assistant United States Attorney, Greenville, South Carolina,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Christopher   S.   Caley       was   sentenced    to   time   served

following his conditional guilty plea on remand to possessing

child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B)

(2006).    On appeal, Caley challenges the district court’s denial

of   his   motion   to   dismiss      his       indictment    for    lack   of

jurisdiction.

           We review “de novo the district court’s denial of a

motion to dismiss an indictment where the denial depends solely

on questions of law.”     United States v. Hatcher, 560 F.3d 222,

224 (4th Cir. 2009).      Section 2252A(a)(5)(B) prohibits “[a]ny

person” from:

     knowingly possess[ing] any book, magazine, periodical,
     film, videotape, computer disk, or any other material
     . . . that was produced using materials that have been
     mailed, or shipped or transported in interstate or
     foreign commerce by any means, including by computer. *


     *
       On October 13, 2008, one day before the superseding
indictment was filed, § 2252A(a)(5)(B) was amended to forbid
“[a]ny person” from “knowingly possess[ing], or knowingly
access[ing] with intent to view” the prohibited material, and
expanding   the  language   concerning  interstate  or   foreign
commerce.   18 U.S.C.A. § 2252A(a)(5)(B) (West Supp. 2009).   To
avoid any ex post facto implications, assessment of Caley’s
conviction is made under the pre-amendment language of the
statute. See Weaver v. Graham, 450 U.S. 24, 28 (1981) (defining
an ex post facto law as “any law which imposes a punishment for
an act which was not punishable at the time it was committed”
(internal quotation marks omitted)).




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There is no dispute that Caley possessed material containing

images   of    child    pornography.         Rather,   Caley     argues    the

interstate or foreign commerce requirement of § 2252A(a)(5)(B)

could not be satisfied because there was no evidence that the

pornographic images were produced on materials that had been

transported interstate.         Caley’s assertion lacks merit.             The

indictment clearly charged Caley with possessing images he had

stored on his computer.         We find that the pornographic images

were “produced” for purposes of § 2252A(a)(5)(B) when they were

copied to Caley’s computer.           See United States v. Schene, 543

F.3d 627, 638-39 (10th Cir. 2008); United States v. Anderson,

280   F.3d    1121,    1125    (7th   Cir.    2002);   United     States   v.

Guagliardo, 278 F.3d 868, 871 (9th Cir. 2002).                  We find the

indictment was clearly adequate.

             Accordingly, we affirm Caley’s conviction and dispense

with oral argument because the facts and legal contentions are

adequately    presented   in    the   materials   before   the    court    and

argument would not aid the decisional process.

                                                                    AFFIRMED




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