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

                                                FILED
                                                                  May 14, 2009
                                No. 08-30689
                              Summary Calendar                Charles R. Fulbruge III
                                                                      Clerk

UNITED STATES OF AMERICA

                                            Plaintiff-Appellee

v.

ALAN D BEVERS

                                            Defendant-Appellant


                 Appeal from the United States District Court
                     for the Middle District of Louisiana
                              No. 3:07-CR-150-1


Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
      Alan D. Bevers appeals his conditional guilty plea conviction to 18 U.S.C.
§ 2251(a), sexual exploitation of a child. He argues that the factual basis of his
plea did not establish that the victim engaged in “sexually explicit conduct”
because the videotape in question did not depict a lascivious exhibition of the




      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                     No. 08-30689

minor’s genitals or pubic area. We review the district court’s factual finding for
clear error.1
      Using the “Dost factors” adopted by this court to determine whether a
visual depiction of a minor constitutes a “lascivious exhibition of the genitals or
pubic area,” 2 the district court pointed to several pertinent facts:     that the
videotape focused on the fully nude genitalia of a female child taking a shower;
captured the child’s buttocks and breast; and was taped with the purpose of
eliciting a sexual response from the viewer.
      We cannot say that the district court’s finding that the depiction at issue
constituted a lascivious exhibition of the genitals or pubic area of the victim is
clear error. The sexually explicit conduct element of § 2251(a) was met, and the
factual basis is sufficient to support Bevers’s plea.3
      AFFIRMED.




      1
       See U.S. v. Reasor, 418 F.3d 466, 474 (5th Cir. 2005); U.S. v. Boudreau,
250 F.3d 279, 283 (5th Cir. 2001).
      2
       U.S. v. Grimes, 244 F.3d 375, 381 (5th Cir. 2001); see U.S. v. Dost, 636 F.
Supp. 828 (S.D. Cal. 1986).
      3
          See F ED. R. C RIM. P. 11(b)(3).

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