                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-2515

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

S TEVEN L ACEY,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
           No. 07 CR 40052—Michael J. Reagan, Judge.



     A RGUED F EBRUARY 20, 2009—D ECIDED JUNE 12, 2009




 Before B AUER, M ANION, and S YKES, Circuit Judges.
  M ANION, Circuit Judge. Steven Lane Lacey pleaded
guilty to possessing child pornography in violation of
18 U.S.C. § 2252A(a)(5)(B). The district court sentenced
him to 108 months’ imprisonment. Lacey appeals, chal-
lenging both his conviction and his sentence. We affirm.
2                                               No. 08-2515

                             I.
  While investigating two Yahoo groups transmitting
images of child pornography over the internet, Federal
Bureau of Investigation agents traced one of the images to
47-year-old Stephen Lane Lacey, who posted the image of
a nude prepubescent female engaged in oral sex with an
adult male. When the agents interviewed Lacey at his
workplace, he admitted to trading child pornography over
the Internet since 1996. He also admitted that he used one
of his two home computers to share and view child
pornography. Agents seized a computer hard drive and
several CD-ROMs after Lacey consented to a search of
his home. The items seized contained several thousand
still images and approximately two dozen videos of
child pornography.
  Lacey was indicted and pleaded guilty to one count of
possession of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). At the change of plea hearing, the
district court asked Lacey, among other things, if the
government could prove beyond a reasonable doubt the
“jurisdictional element” of a § 2252A(a)(5)(B) viola-
tion—that the child pornography “had been transported,
shipped or mailed in interstate or foreign commerce,
including by computer.” Lacey responded, “Yes, sir.”
Later, while reciting the factual basis for the plea, the
government’s attorney asserted that the “images have
traveled in interstate commerce to end up in . . . Illinois.”
The court asked Lacey if the government could prove that
averment beyond a reasonable doubt; Lacey again re-
sponded, “Yes, sir.” Based on those affirmations, the
court accepted Lacey’s plea.
No. 08-2515                                                3

  Prior to sentencing, Lacey advanced several objections
to the presentence report (“PSR”). Among those objections
was his claim that he was not subject to a five-level en-
hancement under U.S.S.G. § 2G2.2(b)(7)(D) for possessing
over 600 images of child pornography. Instead of the 5,000-
plus images attributed to him in the PSR, Lacey insisted
he was only responsible for the four images listed in
the indictment and to which he pleaded guilty of possess-
ing. According to Lacey, any amount over the four
images was unreliable because the government had not
produced evidence that any of the other images depicted
actual minors as opposed to computer-generated “vir-
tual” children.
   After a thorough review of the images, the district court
rejected Lacey’s objection and applied the enhancement.
It gave several reasons for doing so. First, the court dis-
cussed twelve of the video images the PSR included as
relevant conduct.1 It found that the videos featured actual
children because, to the court’s knowledge, making a
movie with virtual actors who were indistinguishable
from real actors was impossible. Because the Guidelines
treat twelve videos of child pornography as equivalent
to over 600 still images, the court found the five-level
enhancement justified on that basis alone.
 Next, the court turned to the still images recovered from
Lacey’s computer and the CD-ROMs in his possession.


1
  The PSR listed 25 video files as relevant conduct. However,
the district court, after examining the videos, culled that
number down to 12 after excluding the videos that were
either duplicates or did not clearly depict minors.
4                                             No. 08-2515

Discarding duplicate images, those of poor quality or
small size, and any image that did not clearly portray
minors, the district court narrowed the total number
listed in the PSR to around 2,000 images. The court stated
that it visually inspected those remaining images,
stopping its inspection only after it had determined that
there was “no question” that at least 1,000 of them in-
volved real children. The court noted its calculation was
consistent with the government’s report from the
National Center for Missing and Exploited Children
(“NCMEC”),2 which concluded that at least 1,222 of the
images from Lacey’s hard drive and his CD-ROMs in-
volved real children. On those bases, the district court
applied the enhancement.
  In addition to the five-level enhancement under
§ 2G2.2(b)(7)(D), the district court added a four-level
enhancement under U.S.S.G. § 2G2.2(b)(4) for material
that portrayed sadistic and masochistic conduct. The
court identified two images and one video that justified
the enhancement: a photograph of a child being sexually
abused while blindfolded; another image of a child,
blindfolded with hands bound and a rope around the
neck, who was being sexually abused; and a video of a
young child screaming and crying as she was raped by
an older man. After applying that enhancement, the
court calculated Lacey’s offense level at 33 and his sen-
tencing range at 135 to 168 months’ imprisonment. The



2
  The NCMEC maintains a database of known victims of child
pornography, which can be used for purposes of comparison.
No. 08-2515                                                       5

statutory maximum for Lacey’s offense was ten years, and
the court imposed a sentence of 108 months’ imprison-
ment. Lacey appeals.


                                II.
   On appeal, Lacey first challenges the evidence estab-
lishing the jurisdictional element of his § 2252A(a)(5)(B)
conviction.3 He argues that the government did not
produce any evidence that the images found on his hard
drive and CD-ROMs had been transported in interstate
commerce. Lacey acknowledges that he did not raise this
issue in the district court and that a guilty plea ordinarily
waives all objections to a conviction. See, e.g., United States
v. Harvey, 484 F.3d 453, 455 (7th Cir. 2007). However, Lacey
contends that a sufficiency challenge to the jurisdictional
element cannot be waived. In the alternative, he argues
that the district judge failed in his obligation under
Federal Rule of Criminal Procedure 11(b)(3) to satisfy
himself that there was a factual basis for the jurisdictional
element of Lacey’s conviction.
  Section 2252A(a)(5)(B) proscribes knowing possession
of child pornography “that has been mailed, or shipped or



3
  During oral argument, Lacey’s attorney also attempted to
challenge the constitutionality of § 2252A as applied to the
Internet. In his appellate brief, however, Lacey specifically states
that he is not challenging the constitutionality of that statute.
Appellant br. at 11-12. He has therefore waived any such
argument.
6                                                No. 08-2515

transported . . . in or affecting interstate or foreign com-
merce by any means, including by computer.” That quoted
language is commonly referred to as the “jurisdictional
element” of the offense. See United States v. Anderson, 280
F.3d 1121, 1125 (7th Cir. 2002). Lacey claims that his
challenge to that element of the offense cannot be
waived by his guilty plea due to its jurisdictional nature.
  Lacey correctly notes that a guilty plea does not waive
certain jurisdictional challenges to a conviction—chal-
lenges that go “to the very power of the State to bring the
defendant into court to answer the charge brought
against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974);
see also United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.
1995). However, contrary to Lacey’s contention, his
attack on the evidence supporting the jurisdictional
element of his § 2252A(a)(5)(B) conviction is not that type
of jurisdictional challenge. A “jurisdictional element” is
simply an element of a federal crime. It is jurisdictional
“only in the shorthand sense that without that [interstate
commerce] nexus, there can be no federal crime . . . . It is
not jurisdictional in the sense that it affects a court’s
subject matter jurisdiction, i.e., a court’s constitutional or
statutory power to adjudicate a case, here authorized by
18 U.S.C. § 3231.” United States v. Martin, 147 F.3d 529, 532
(7th Cir. 1998) (internal citation omitted). As an offense
element, it does not implicate the court’s power to hear a
case and can be waived by a guilty plea—as it was here.
See Milhem v. United States, 834 F.2d 118, 120 (7th Cir. 1987)
(noting that “a plea of guilty to an offense constitutes a
waiver of any claim of insufficiency of proof on any
element of that offense”). Because Lacey has not asked to
No. 08-2515                                                 7

set aside his guilty plea, we will not entertain his challenge
to the sufficiency of the evidence supporting the juris-
dictional element of his § 2252A(a)(5)(B) conviction.
  Lacey’s other claim—that the district court failed to
sufficiently apprise itself of the factual basis for Lacey’s
plea—is contradicted by the record. At the change of plea
hearing, Lacey admitted—twice—that such a factual
basis existed. First, when reciting the elements of the
crime, the district court specifically asked Lacey if he
agreed that the government could prove that the child
pornography was “transported, shipped or mailed in
interstate or foreign commerce . . . as charged,” to which
he replied, “Yes, sir.” Second, after the government set
forth the factual basis for the plea, which included that
the images of child pornography had “traveled in
interstate commerce,” the court asked Lacey if the gov-
ernment could prove all it had recited beyond a reasonable
doubt, to which he again replied, “Yes, sir.” Those admis-
sions are sufficient to establish a factual basis for the
jurisdictional element of the § 2252A(a)(5)(B) offense. Cf.
United States v. Turner, 272 F.3d 380, 389-90 (6th Cir.
2001) (finding government’s contention that it was pre-
pared to prove conspirators “had purchased items that
moved in interstate commerce in preparation for the
crime” sufficient to establish the factual basis for the
jurisdictional element of the Hobbs Act offense). We
therefore reject Lacey’s challenge to his conviction.
  In addition to challenging the jurisdictional element of
his conviction, Lacey argues that the district court com-
mitted two errors at sentencing. First, Lacey contends
8                                                 No. 08-2515

that the district court erred in finding that the offense
involved more than 600 images of child pornography, a
finding which increased his guidelines range five levels
under U.S.S.G. § 2G2.2(b)(7)(D). “We review a district
court’s application of the sentencing guidelines de novo,
but defer to the court’s finding of facts unless they are
clearly erroneous.” United States v. Irby, 240 F.3d 597, 599
(7th Cir. 2001).
  Relying on United States v. Frabizio, 445 F. Supp. 2d 152
(D. Mass. 2006), Lacey claims that the district court’s
visual inspection of the images was insufficient to find
that they were images of actual minors as opposed to
virtual ones.4 In Frabizio, the district court concluded that
visual inspection alone was insufficient to differentiate
real children from virtual ones. 445 F. Supp. 2d at 155. The
district court therefore required further extrinsic
evidence beyond visual inspection—though what specifi-
cally that would entail (other than an “expert with
greater knowledge of computers”), the court did not say.
Id. at 159. Lacey would have us go even farther than
Frabizio; he argues that “[w]ithout testimony of a person
who participated in the creation of a digital image, no
authenticity of the claimed images can be determined.”
Appellant br. at 13 (emphasis added).
  Lacey’s reliance on Frabizio is misplaced. Not only is
Frabizio a district court case that is not precedential author-


4
  The Supreme Court held in Ashcroft v. Free Speech Coalition,
535 U.S. 234 (2002), that the First Amendment protects the
possession of virtual images of child pornography.
No. 08-2515                                                        9

ity, Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.
2006), but also it is no longer good law. After the district
court’s decision in Frabizio, the First Circuit definitively
held, contra Frabizio, that the government is not required
to present any further evidence of the reality of the chil-
dren depicted other than the pictures themselves. See
United States v. Rodriguez-Pacheco, 475 F.3d 434, 441-42
(1st Cir. 2007).5 In so holding, the First Circuit was simply
echoing what every other court of appeals confronting this
issue has concluded: expert evidence is not required to
prove the reality of children portrayed in pornographic
images. See United States v. Salcido, 506 F.3d 729, 733-34 (9th
Cir. 2007) (per curiam) (“We agree with every other circuit
that has ruled on the issue that expert testimony is not
required for the government to establish that the images
depicted an actual minor.”); United States v. Irving, 452
F.3d 110, 120-22 (2d Cir. 2006) (rejecting appellant’s


5
  The First Circuit held in United States v. Nolan, 818 F.2d 1015,
1017-19 (1st Cir. 1987), that a trier of fact, without the assistance
of an expert or other evidence, can discern between an actual
and virtual image of child pornography. However, in United
States v. Hilton, 363 F.3d 58, 65-66 (1st Cir. 2004), the First
Circuit, relying on Ashcroft v. Free Speech Coalition, 535 U.S. 234
(2002), moved away from Nolan and held that the government
was obligated to produce expert testimony to establish the
reality of an image of child pornography. The First Circuit
later withdrew that opinion, United States v. Hilton, 386 F.3d 13
(1st Cir. 2004), but the status of Nolan remained in doubt until
Rodriguez-Pacheco, which reaffirmed the holding in Nolan. The
district court in Frabizio issued its ruling during that interim
of uncertainty. See Frabizio, 445 F. Supp. 2d at 156-57.
10                                                 No. 08-2515

claim that the government must produce evidence
extrinsic to the pictures themselves); United States v.
Farrelly, 389 F.3d 649, 654 (6th Cir. 2004) (“The question
of whether the images are virtual or real is one of fact, to be
determined by evidence about which argument can be
made to the jury.”), abrogated on other grounds by United
States v. Williams, 411 F.3d 675, 677 n.1 (6th Cir. 2005);
United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per
curiam) (holding extrinsic evidence was not required to
prove reality of children in images); United States v.
Deaton, 328 F.3d 454, 456 (8th Cir. 2003) (per curiam)
(holding that the “pictures themselves support the
district court’s determination that the images were
plainly of children under age 12, and depicted actual
children”); United States v. Hall, 312 F.3d 1250, 1260 (11th
Cir. 2002) (reviewing for plain error and determining
from the pornographic pictures themselves that “no
reasonable jury could have found that the images were
virtual children created by computer technology as op-
posed to actual children”).
   Joining our sister circuits, we reject Lacey’s argument
that the government was required to present any expert
evidence, much less testimony from those who created
the pornographic images, to establish that the images
depicted real as opposed to virtual children. Because
Lacey has presented no evidence that would call into
question the reality of the children, we hold that the
district court’s visual inspection was sufficient to support
its finding that the images depicted actual children. See
Irving, 452 F.3d at 121. In addition, we note that the
district court, in its thorough oral discussion of this
No. 08-2515                                                     11

issue, based its finding not just on its visual inspection
alone; it also compared its observations with the NCMEC
report to confirm that the images involved real children.
See United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007)
(relying on similar NCMEC report).6
  Lacey’s second challenge to his sentence is easily dis-
patched. Lacey contends that the Sixth Amendment, as
interpreted in Blakely v. Washington, 542 U.S. 296 (2004),
and its progeny, required a jury and not the district
court to determine contested factual issues at sentencing,
such as how many images Lacey possessed, if each
image depicted an actual minor, and whether an image
depicted sadistic or masochistic conduct. That argument
has no merit. See United States v. White, 472 F.3d 458, 464
(7th Cir. 2006) (characterizing this line of argument as
“frivolous”). “In the aftermath of Booker, the sentencing
guidelines are construed as advisory, not mandatory. We
have repeatedly held . . . that sentencing enhancements
need not be found by a jury beyond a reasonable doubt
because they no longer alter the statutory maximum.” Id.
(internal citation omitted). Because Lacey was sentenced


6
   We note an alternative ground for affirming the district court’s
application of the enhancement: the twelve videos on Lacey’s
computer that the district court found contained child pornogra-
phy. On appeal, Lacey does not challenge the district court’s
finding that those videos contained real children. As those
videos by themselves support the five-level enhancement, see
U.S.S.G. § 2G2.2 application note 4(B)(ii) (2007), Lacey’s chal-
lenge to the court’s reliance on its visual inspection of the
still images makes no difference to his sentence.
12                                              No. 08-2515

below the statutory maximum of ten years for his
offense, his argument is unavailing.


                            III.
   Lacey’s plea of guilty waived his challenge to the juris-
dictional element of his § 2252A(a)(5)(B) conviction.
Moreover, the district court, relying on Lacey’s admissions
during the change of plea hearing, sufficiently apprised
itself of the factual basis for the jurisdictional element.
Regarding Lacey’s sentence, the district court correctly
enhanced his sentence five levels under U.S.S.G.
§ 2G2.2(b)(7)(D) for possessing over 600 images of child
pornography based on the numerous images and videos
he possessed. Moreover, because the court sentenced
Lacey below the statutory maximum, no Sixth Amend-
ment violation occurred. We therefore A FFIRM Lacey’s
conviction and sentence.




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