                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                    February 20, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court

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

          Plaintiff-Appellee,
 v.                                                     No. 06-4150
                                                 (D.C. No. 1:05 CR-131-TC)
 CHARLES M ICHAEL EARLE, a/k/a                        (District of Utah)
 Charles M . Earle and a/k/a M ike Earle,

          Defendant-Appellant.



                                OR DER AND JUDGM ENT *


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      On February 7, 2006, M r. Earle conditionally pled guilty to one count of

production of child pornography, in violation of 18 U.S.C. § 2251(a), stipulating

to the follow ing facts:

      Between the Fall of 2004 and Spring of 2005, in the Central Division
      of the District of Utah, I knowingly coerced the minor, Child M to
      participate in the production of a video of child pornography. I
      instructed Child M to turn my camcorder towards herself and film
      herself, unclothed below the waist, using a vibrator. M y voice can


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered and submitted without oral argument. This order and judgment
is not binding precedent except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      be heard on this video instructing her in this fashion. Child M was 7
      years old at the time of these videos. The images w ere taken with
      my camcorder which was produced with materials that had been
      shipped in interstate commerce. I did this in violation of 18 U.S.C.
      § 2251(a).

Plea Proffer at 5. As part of this plea, however, M r. Earle preserved his right to

contest one narrow matter -- whether his purely intrastate production of child

pornography had a sufficient nexus to interstate commerce to give rise to federal

jurisdiction under the Constitution. Id. On June 12, 2006, the D istrict Court

sentenced M r. Earle, inter alia, to the mandatory minimum of 180 months of

incarceration. See Crim. J. at 1-5; see also 18 U.S.C. §§ 2251(a) and (e). The

District Court also took up, and rejected, M r. Earle’s preserved subject matter

jurisdiction argument, holding it barred by our decision in United States v.

Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).

      On appeal, M r. Earle reiterates his view that the “purely local production of

child pornography [is] not within the purview of the federal government.” A plt.

Op. Br. at 4. M r. Earle expressly acknowledges, however, that Jeronimo-Bautista

“forecloses the possibility of a favorable ruling on [his] motion” from this panel

and that his appeal is brought “solely to preserve” the argument. M ot. to D ismiss

at 1. W e agree with M r. Earle’s assessment of our prior decision. In Jeronimo-

Bautista, we squarely held that Congress properly exercised its regulatory powers

under the Commerce Clause when it passed 18 U.S.C. § 2251(a), explaining that

“Congress’ prohibition against the intrastate possession or manufacture of child

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pornography is a rational (and commonly utilized) means of regulating comm erce

in that product.” 425 F.3d at 1271 (internal quotation marks omitted). This is so,

we noted, because “the intrastate production of child pornography could, in the

aggregate, have a substantial effect on the interstate market for such materials,”

thus affecting the supply and demand balance nationwide, id. at 1272; Congress’s

decision to target intrastate production, we held, “represents a rational

determination that such local activities constitute an essential part of the interstate

market for child pornography that is well within [its] power to regulate.” Id. at

1273. Until and unless a higher authority indicates otherwise, we are bound by

this holding and are therefore constrained, as M r. Earle agrees, to reject his

appeal.

      A FFIR ME D.

                                        ENTERED FOR THE COURT



                                        Neil M . Gorsuch
                                        Circuit Judge




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