     Case: 15-10238      Document: 00513279136         Page: 1    Date Filed: 11/19/2015




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

                                    No. 15-10238
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        November 19, 2015
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

GREGORY BOGOMOL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:14-CR-174


Before HIGGINBOTHAM, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Gregory Bogomol pleaded guilty to two counts of producing child
pornography, in violation of 18 U.S.C. § 2251(a). Bogomol admitted in the
factual basis for his guilty plea that he knew or had reason to know that the
images would be transmitted via the Internet and stipulated that the Internet
is a “means and facility of interstate and foreign commerce.” Bogomol did not
admit that the images would move across state lines and now argues that 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 15-10238

absence of such an admission fatally undermines the factual basis for his guilty
plea.
        Under 18 U.S.C. § 2251, it is unlawful for a person to use a minor to
produce a sexually explicit image “if such person knows or has reason to know”
that the image “will be . . . transmitted using any means or facility of interstate
or foreign commerce.” Bogomol contends that the term “means or facility” of
interstate commerce should be limited to only those media that move an image
across state lines. According to Bogomol, construing § 2251 to include “intra-
state transmission through interstate channels” impermissibly intrudes upon
“the traditional state responsibility for crime control” and is therefore contrary
to the Supreme Court’s decision in Bond v. United States, 134 S. Ct. 2077
(2014). Bogomol asserts that the factual basis for his plea was inadequate
under Rule 11 because he neither admitted that the images he produced would
be transmitted across state lines nor stipulated that the Internet constituted a
means or facility of interstate commerce “in [his] case.”
        “Rule 11(b)(3) requires a district court taking a guilty plea to make
certain that the factual conduct admitted by the defendant is sufficient as a
matter of law to establish a violation of the statute to which he entered his
plea.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (footnote
omitted). As Bogomol concedes, plain error review applies to his forfeited
objection to the factual sufficiency of his plea. See id. To establish plain error,
he must show a forfeited error that is clear or obvious that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
only if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.




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                                  No. 15-10238

      We have held that transmitting child pornography via the Internet is
“tantamount to moving photographs across state lines” and satisfies the
interstate nexus requirement of § 2251. United States v. Runyan, 290 F.3d
223, 239 (5th Cir. 2001) (internal quotation marks and citation omitted). This
court has also rejected arguments that the criminalization of intrastate
transportation and transmission of child pornography violates the Commerce
Clause.   See United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011)
(rejecting a Commerce Clause challenge to the ban on production of child
pornography in § 2251 as foreclosed under United States v. Kallestad, 236 F.3d
225, 231-33 (5th Cir. 2000)). The Supreme Court’s decision in Bond did not
abrogate the holdings of these cases. Accordingly, the district court’s finding
of an adequate factual basis for Bogomol’s guilty plea was not a clear or obvious
error, as Bogomol acknowledges. See Puckett, 556 U.S. at 135.
      Alternatively, Bogomol asserts that this Court’s conclusion that intra-
state transmission of child pornography through interstate channels suffices
to establish an interstate nexus is erroneous in light of Bond and that
criminalization of such transmissions under § 2251 constitutes the prohibited
exercise of a federal police power. He also argues, in the alternative, that plain
error review should not apply to his forfeited objection to the factual basis for
his plea. One panel of this court may not overrule the decision of another
absent a superseding en banc or Supreme Court decision. See United States v.
Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002). Therefore, Bogomol is
correct that these issues are foreclosed. See Dickson, 632 F.3d at 192; Trejo,
610 F.3d 313; Runyan, 290 F.3d at 192.
      The judgment of the district court is AFFIRMED. The Government’s
motions for summary affirmance and, alternatively, for an extension of time to
file an appellate brief, are DENIED.



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