[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCT 29, 2008
No. 06-11217 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-14022-CR-JEM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARK PROCTOR,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 29, 2008)
Before ANDERSON, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Appellant Mark Proctor appeals his conviction on one count of promotion
and distribution of child pornography, in violation of 18 U.S.C. § 2252A(a)(3)(B).
For the first time on appeal, Proctor argues that his conviction should be
overturned because this court, in United States v. Williams, 444 F.3d 1286 (11th
Cir. 2006), rev’d, 128 S. Ct. 1830 (2008), held that the statute under which he was
convicted, 18 U.S.C. § 2252A(a)(3)(B), was unconstitutionally overbroad and
vague.
Ordinarily, “[w]e review a challenge to the constitutionality of a statute de
novo.” United States v. Knight, 490 F.3d 1268, 1270 (11th Cir.), cert. denied, 128
S. Ct. 547 (2007). However, where, as here, a defendant does not challenge the
constitutionality of a statute in the district court, we review such challenges for
plain error. See United States v. Smith, 459 F.3d 1276, 1282-83 (11th Cir. 2006).
“Under the plain error standard, before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is plain, and (3) that affects
substantial rights.” Id. at 1283 (quotation omitted). If these criteria are met, a
court of appeals has the discretion to correct the error, but “should” correct the
error only if it “seriously affects the fairness, integrity or public reputation of
judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770,
1779 (1993) (quotation and alteration omitted).
Section 2252A(a)(3)(B) of Title 18 provides that any person who knowingly
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advertises, promotes, presents, distributes, or solicits through the
mails, or in interstate or foreign commerce by any means, including
by computer, any material or purported material in a manner that
reflects the belief, or that is intended to cause another to believe, that
the material or purported material is, or contains--
(i) an obscene visual depiction of a minor engaging in sexually
explicit conduct; or
(ii) a visual depiction of an actual minor engaging in sexually
explicit conduct; . . .
shall be imprisoned not less than 5 and not more than 20 years. 18 U.S.C.
§ 2252A(a)(3)(B), (b)(1).
In Williams, we held that § 2252A(a)(3)(B) was facially unconstitutional
because it was both substantially overbroad and impermissibly vague, and we
reversed Williams’s conviction under the statute. Williams, 444 F.3d at 1308-09.
The Supreme Court reversed, concluding that § 2252A(a)(3)(B) was neither
substantially overbroad nor impermissibly vague. See Williams, __ U.S. at ___,
128 S. Ct. at 1838-47 (2008). On remand from the Supreme Court, we affirmed
“Williams’s conviction and sentence for pandering child pornography in violation
of 18 U.S.C. § 2252A(a)(3)(B).” United States v. Williams, 534 F.3d 1371 (11th
Cir. 2008).
Because the Supreme Court has held that § 2252A(a)(3)(B) is constitutional,
we affirm Proctor’s conviction.
AFFIRMED.
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