United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 7, 2003
Charles R. Fulbruge III
Clerk
No. 02-41370
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOMAS MCBARRON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-01-CR-22-2
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Before BARKSDALE, EMILIO M. GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
Thomas McBarron appeals his jury convictions of conspiracy to
produce and possessing child pornography and his resulting 188-
month prison sentence. McBarron contends that the conspiracy
statute, 18 U.S.C. § 2251(a), is an unconstitutional exercise of
Congress’s Commerce Clause powers because it permits a conviction
when the only connection with interstate commerce is the fact that
the materials used to produce the offending images traveled in
interstate commerce at some point in time. This contention has no
*
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that this opinion should not be published and is not precedent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.
No. 02-41370
-2-
merit. See United States v. Kallestad, 236 F.3d 225, 231 (5th Cir.
2000).
McBarron contends that the district court misapplied the
Sentencing Guidelines by concluding that it could not depart
downward from the applicable guideline range on the basis of
lighter sentences received by codefendants who pleaded guilty
to reduced charges. There was no error in the court’s ruling. See
United States v. Meza, 127 F.3d 545, 549-50 (7th Cir. 1996).
Finally, McBarron argues that the district court clearly erred
by increasing his guideline offense level by four levels pursuant
to U.S.S.G. § 3B1.1(a), because of his role as a leader or
organizer. See United States v. Miranda, 248 F.3d 434, 446 (5th
Cir. 2001). McBarron is not entitled to relief because there is
ample evidence in the record which supports the district court’s
ruling.
AFFIRMED.