                                                        [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                       FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                         ________________________ ELEVENTH CIRCUIT
                                                               MAY 31, 2006
                               No. 05-15739                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 05-00145-CR-CG

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

HAROLD FRANKLIN WALTERS,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Alabama
                        _________________________

                                (May 31, 2006)

Before DUBINA, BARKETT and HULL, Circuit Judges.

PER CURIAM:

     Harold Franklin Walters appeals his conviction for possession of child
pornography that was transported in interstate commerce, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). On appeal, Walters argues that there was no evidence to

suggest that his receipt of child pornography over the internet had a connection to,

or an impact upon, interstate commerce, and thus, charging him under

§ 2252A(a)(5)(B) was plain error. He contends that the intrastate possession of

child pornography for non-commercial purposes does not have an impact on

interstate commerce, and the application of § 2252A in the instant case was

unconstitutional. We find no merit to Walters’ argument.

      We have held that “the internet is an instrumentality of interstate commerce .

. . [and] Congress clearly has the power to regulate the internet, as it does other

instrumentalities and channels of interstate commerce, and to prohibit its use for

harmful or immoral purposes regardless of whether those purposes would have a

primarily intrastate impact.” United States v. Hornaday, 392 F.3d 1306, 1311

(11th Cir. 2004). More recently, we concluded that “it is within Congress’s

authority to regulate all intrastate possession of child pornography, not just that

which has traveled in interstate commerce or has been produced using materials

that have traveled in interstate commerce.” United States v. Maxwell, No. 03-

14326, manuscript op. at 18 (11th Cir. Apr. 20, 2006).

      Upon review of the record, we discern no reversible error. At trial, the



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government proved, through witness testimony and forensic analysis, that Walters

downloaded pornographic images using the internet, which is an instrument of

interstate commerce. As such, there was no constitutional error in the indictment,

and we affirm Walters’s conviction.

      AFFIRMED.




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