     Case: 17-11043      Document: 00514437924         Page: 1    Date Filed: 04/19/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 17-11043                                FILED
                                  Summary Calendar                          April 19, 2018
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,
                                                                                Clerk


                                                 Plaintiff-Appellee

v.

RAYMOND SANCHEZ LOPEZ,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 5:17-CR-30-1


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Raymond Sanchez Lopez appeals his conviction for possession of child
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).                 He asserts that
§ 2252A(a)(5)(B) should be construed as requiring the Government to prove, or
the defendant to admit, that the “offense caused the [child pornography] to
move in interstate commerce, or, at least, . . . that the relevant [child
pornography] moved in interstate commerce at a time reasonably near 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
      Case: 17-11043   Document: 00514437924      Page: 2    Date Filed: 04/19/2018


                                  No. 17-11043

offense.” Relying on the Supreme Court’s decision in Bond v. United States,
134 S. Ct. 2077 (2014), Lopez contends that a conviction in the absence of such
proof impermissibly intrudes upon the police power of the States.            Lopez
further argues that the factual basis for his guilty plea was insufficient under
Federal Rule of Criminal Procedure 11 because he did not admit to such facts.
The Government has moved for summary affirmance in lieu of filing an
appellate brief or, alternatively, an extension of time to file a brief.
       “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). Plain error review applies to Lopez’s forfeited objection to the factual
basis for his guilty plea. See id. To establish plain error, Lopez must show a
forfeited error that is clear or obvious and 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.
       We have held that the Commerce Clause authorizes Congress to prohibit
local, intrastate possession and production of child pornography where the
materials used in the production were moved in interstate commerce. See
United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011); United States v.
Kallestad, 236 F.3d 225 (5th Cir. 2000). The Supreme Court’s decision in Bond
did not abrogate the holdings of these cases. As Lopez concedes, the district
court’s finding that there was a sufficient factual basis for his guilty plea was
not a clear or obvious error in light of this caselaw. See Puckett, 556 U.S. at
135. Lopez raises the issue to preserve it for further review.



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                                  No. 17-11043

      Alternatively, Lopez asserts that Dickson and Kallestad were wrongly
decided and that the Commerce Clause does not authorize Congress to impose
federal criminal liability where the defendant’s conduct is tenuously related to
interstate commerce.     He also argues, in the alternative, that plain error
review should not apply to his forfeited objection to the factual basis of his
guilty plea. One panel of this court may not overrule the decision of another
absent a superseding en banc or Supreme Court decision. United States v.
Lipscomb, 299 F.3d 303, 313 & n.34 (5th Cir. 2002). Accordingly, Lopez is
correct that relief on these issues is foreclosed.
      Summary affirmance is not appropriate, and the Government’s motion
is DENIED. See Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th
Cir. 1969). The Government’s alternative motion for an extension of time to
file a brief is DENIED as unnecessary. The judgment of the district court is
AFFIRMED.




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