United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 5, 2004
Charles R. Fulbruge III
Clerk
No. 03-20298
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM DOUGLAS ROBERTS,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-02-CV-2874
USDC No. H-99-CR-471-1
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Before DUHÉ, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:1
William Roberts, federal prisoner # 83923-079, appeals from
the district court’s dismissal with prejudice of his 28 U.S.C.
§ 2255 motion to vacate his conviction for possession and
transportation of child pornography in violation of 18 U.S.C.
§§ 2252A(a)(1),(a)(5)(B), 2256(8)(A). The district court granted
Roberts a certificate of appealability (“COA”) on the issue whether
there was sufficient evidence to establish that Roberts possessed
and transported pornographic images of actual rather than virtual
1
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that this opinion should not be published and is not precedent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.
children in compliance with Ashcroft v. Free Speech Coalition, 535
U.S. 234 (2002). In reviewing the district court’s denial of a 28
U.S.C. § 2255 motion, this court examines the district court’s
factual findings for clear error and conclusions of law de novo.
United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
In Free Speech Coalition, the Supreme Court struck down two
definitional terms of child pornography under sections 18 U.S.C. §
2256(8)(B) & (D) as vague and overbroad as applied to virtual
pornography. The Supreme Court retained the definition of child
pornography under section 18 U.S.C. § 2256(8)(A).
This court need not reach the issue of whether Free Speech
Coalition applies retroactively to a case on collateral review,
because Roberts has not shown that the evidence introduced at
his bench trial was insufficient to sustain his conviction.
At Roberts’s trial, two witnesses testified regarding their
examinations of the images retrieved from Roberts’s computer. From
the precise detail and explanations of the images given by these
witnesses, a reasonable person could infer that the images were of
actual children engaging in acts of child pornography as defined in
18 U.S.C. § 2256(8)(A). See Jackson v. Virgina, 443 U.S. 307, 319
(1979). Accordingly, the district court’s order dismissing
Roberts’s 28 U.S.C. § 2255 motion is AFFIRMED.
2