     Case: 10-60320 Document: 00511391530 Page: 1 Date Filed: 02/23/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 23, 2011
                                     No. 10-60320
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff–Appellee,

v.

JOHN KAPENEKAS,

                                                   Defendant–Appellant.


                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 1:08-CR-23-1


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Pursuant to a written plea agreement, John Kapenekas, federal prisoner
# 12771-042, pleaded guilty to three counts of sexual exploitation of a minor, in
violation of 18 U.S.C. § 2251(a). He reserved the right to challenge only the
denial of a pretrial motion to suppress evidence. Kapenekas was sentenced to
15 years of imprisonment on each count of conviction, to be served concurrently,
and five years of supervised release. He did not file a direct appeal. Kapenekas
now appeals the district court’s denial of his 28 U.S.C. § 2255 motion. The

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
    Case: 10-60320 Document: 00511391530 Page: 2 Date Filed: 02/23/2011

                                  No. 10-60320

district court granted a certificate of appealability (COA) on the issue whether
§ 2251(a), as applied to him, is an unconstitutional extension of the Commerce
Clause.
      “A plea of guilty admits all the elements of a formal criminal charge and
waives all non-jurisdictional defects in the proceedings leading to conviction.”
United States v. Smallwood, 920 F.2d 1231, 1240 (5th Cir. 1991). In general, a
valid guilty plea forecloses a collateral attack on a final judgment of conviction
except upon grounds that the plea was not intelligent or voluntary. See Taylor
v. Whitley, 933 F.2d 325, 327 (5th Cir. 1991). The basis upon which Kapenekas
now seeks to challenge his conviction—an as-applied constitutional challenge to
§ 2251(a)—is a non-jurisdictional defect in the trial court proceedings that is
waived by a valid guilty plea. See United States v. Sealed Appellant, 526 F.3d
241, 242-43 (5th Cir. 2008) (direct appeal). Thus, Kapenekas’s constitutional
argument is waived. See Taylor, 933 F.2d. at 327.
      Kapenekas also asserts that the indictment and the plea agreement to
which he agreed omitted an essential element of the offense, i.e., that he actually
produced visual depictions. However, he did not raise this issue in the district
court, and there is no indication that the district court’s grant of a COA included
the instant issue. While Kapenekas has briefed the issue, he has not expressly
requested that the district court’s grant of a COA be broadened to include this
issue. Therefore, we may not consider it. See United States v. Kimler, 150 F.3d
429, 431 & n.1 (5th Cir. 1998) (per curiam); Lackey v. Johnson, 116 F.3d 149, 151
(5th Cir. 1997).
      Accordingly, the district court’s denial of Kapenekas’s § 2255 motion is
AFFIRMED. Kapenekas’s motion to strike a portion of the appellee’s brief is
DENIED.




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