     Case: 12-30094       Document: 00512162827         Page: 1     Date Filed: 03/04/2013




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

                                                                            FILED
                                                                           March 4, 2013
                                     No. 12-30094
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

CLYDE J. PONTEFRACT,

                                                  Defendant-Appellant


                   Appeals from the United States District Court
                       for the Western District of Louisiana
                              USDC No. 2:08-CR-69-1


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Clyde J. Pontefract pleaded guilty to production of child pornography. He
was sentenced to 30 years in prison and a life term of supervised release. He
appeals his conviction and sentence. We AFFIRM.
       Pontefract first contends that there was no factual basis for his plea
because there was no proof that any image he produced of his minor daughter
was sexually explicit in that it consisted of a “lascivious exhibition of the genitals
or pubic area” as required by 18 U.S.C. § 2256(2)(A)(v). Whether the nude

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-30094

photos here constitute a “ lascivious exhibition” and whether there was a
sufficient factual basis to support the conviction are both factual issues we
review for clear error. See United States v. Steen, 634 F.3d 822, 826 (5th Cir.
2011); United States v. Hildenbrand, 527 F.3d 466, 474-75 (5th Cir. 2008).
Reviewing the record in light of the factors set forth in United States v. Dost, 636
F. Supp. 828, 832 (S.D. Cal. 1986), aff’d, 813 F.2d 1231 (9th Cir. 1987), which we
adopted in United States v. Rubio, 834 F.2d 442, 448 (5th Cir. 1987), we conclude
that Pontefract shows no clear error in the district court’s finding of a factual
basis.
         Pontefract asks us to consider the constitutionality of § 2256(2)(A)(v) as
applied to him.      To the extent he articulates an as-applied constitutional
challenge to § 2251(a), he asserts a non-jurisdictional defect that was waived by
his valid guilty plea. See United States v. Sealed Appellant, 526 F.3d 241, 242-43
(5th Cir.2008).
         In further asserting that he committed no crime, Pontefract makes various
assertions that the offending image must depict a sexual act, that the image
must have traveled in interstate commerce, that the material containing the
image must have contained the image when the material traveled in interstate
commerce, and that the image must have been commercially marketed. Section
2251(a) plainly requires none of these things. Pontefract’s arguments warrant
no relief.
         Pontefract also contends generally that his plea was invalid and
unknowing because he did not have access to the PSR at the time of the plea and
that the PSR could not be used to support the finding of a factual basis or to
calculate his sentence. Pontefract acknowledged under oath and in his plea
agreement that his sentence could be up to 30 years and that it would be
determined by the court after consulting the Guidelines and the completed PSR.
Further, a sentencing court may properly rely on the facts in the PSR to
formulate the sentence. United States v. Caldwell, 448 F.3d 287, 291 n.1 (5th

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                                   No. 12-30094

Cir. 2006). Information in the PSR may serve as support for a finding of a
sufficient factual basis. See Hildenbrand, 527 F.3d at 475. This claim has no
basis in fact or law.
      Pontefract contends that his 30-year prison sentence and his life-time term
of supervised release are unlawful. He posits that his offense is a Class B felony
under 18 U.S.C. § 3559(a)(2), and he argues that the authorized sentence
allowed a Class B felony is 25 years pursuant to 18 U.S.C. § 3581(b)(2).
§ 3581(b) was and “is, part of a classification system adopted in 1984 for use in
setting [sentences] for federal offenses by reference to letter grades reflecting
their relative seriousness.” United States v. R.L.C., 503 U.S. 291, 300 (1992).
In contrast, § 3559(a) applies to offenses“not specifically classified by a letter
grade in the section defining [them].” § 3559(a). In addition, § 3559(b) provides
that “the maximum term of imprisonment is the term authorized by the law
describing the offense.” § 3559(b). Moreover, § 3551 provides that a person is
sentenced under § 3581, which is part of “subchapter D,” only if the sentence is
not “otherwise specifically provided.” § 3551(a) & (b)(3); § 3581. The maximum
sentence “specifically provided” for a violation of § 2251(a) is 30 years. § 2251(e).
Pontefract fails to show that his 30-year sentence of imprisonment was unlawful.
      Pontefract argues that his life term of supervised release is unlawful
because it makes his total sentence of custody exceed 30 years, which he says is
an absolute maximum. A court may impose a term of supervised release “after
imprisonment,” and the term may be as long as the remainder of the offender’s
life. 18 U.S.C. § 3583(a) & (k).
      Pontefract seeks to assert broad claims of ineffective assistance of plea
counsel. The record is insufficiently developed to allow consideration of these
claims on direct appeal, so we do not consider them. See Massaro v. United
States, 538 U.S. 500, 504 (2003); United States v. Cantwell, 470 F.3d 1087, 1091
(5th Cir. 2006).
      The judgment of the district court is AFFIRMED.

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