     Case: 20-10007      Document: 00515452038         Page: 1    Date Filed: 06/15/2020




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

                                                                                 FILED
                                    No. 20-10007                             June 15, 2020
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

ANDREW REY YBABEN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:19-CR-89-1


Before DAVIS, SMITH, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Andrew Rey Ybaben appeals his conviction and 300-month sentence for
production of child pornography, a violation of 18 U.S.C. § 2251(a). Citing
Bond v. United States, 572 U.S. 844 (2014), Ybaben argues that the factual
basis was insufficient to support his guilty plea because § 2251(a) should be
construed as requiring the Government to prove the offense caused the
materials to move in interstate commerce or, at least, that the materials moved


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 20-10007     Document: 00515452038      Page: 2   Date Filed: 06/15/2020


                                  No. 20-10007

in interstate commerce recently. He further contends that the district court
abused its discretion in overruling his objection to the condition of supervised
release requiring him to participate in sex offender treatment that may include
plethysmograph testing.      Ybaben acknowledges that his arguments are
foreclosed, but he raises the issues to preserve them for further review. The
Government has filed an unopposed motion for summary affirmance, agreeing
that the issues are foreclosed.
      Summary affirmance is appropriate if “the position of one of the parties
is clearly right as a matter of law so that there can be no substantial question
as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158,
1162 (5th Cir. 1969). The parties are correct that Ybaben’s challenge to his
factual basis is foreclosed. See United States v. Bailey, 924 F.3d 1289, 1290
(5th Cir.), cert. denied, 140 S. Ct. 411 (2019); United States v. Dickson, 632 F.3d
186, 192 (5th Cir. 2011); United States v. Kallestad, 236 F.3d 225 (5th Cir.
2000). The parties are also correct that United States v. Ellis, 720 F.3d 220,
227 (5th Cir. 2013), forecloses Ybaben’s challenge to the condition of his
supervised release.    Accordingly, the Government’s motion for summary
affirmance is GRANTED, the Government’s alternative motion for an
extension of time to file a brief is DENIED, and the judgment of the district
court is AFFIRMED.




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