Case: 16-10243 Document: 00513726949 Page: 1 Date Filed: 10/20/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-10243 FILED
Summary Calendar October 20, 2016
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
MARCOS ANTONIO GAMEZ,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 6:15-CR-27-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Marcos Antonio Gamez appeals his convictions for production of child
pornography and aiding and abetting (count one) and enticement of a child and
aiding and abetting (count two), in violation of 18 U.S.C. § 2251(a), 18 U.S.C.
§ 2422(b), and 18 U.S.C. § 2. In the factual basis for his guilty plea for the
production count, Gamez admitted that he produced a visual depiction and
that it “was produced using materials that have been mailed, shipped, or
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 16-10243
transported in interstate or foreign commerce.” With respect to the enticement
count, Gamez admitted that he had enticed a minor to engage in sexual activity
and that he “used any facility or means of interstate or foreign commerce to do
so.”
Gamez asserts that the factual basis for count one is insufficient under
Federal Rule of Criminal Procedure 11 because he did not admit that the
“offense caused the materials to move interstate” in the recent past, as
§ 2251(a) should be construed to require, and that the factual basis for count
two is insufficient because he did not admit that the media he used “moved
information across state lines in connection with [his] offense,” which § 2422(b)
should be construed to require. Relying on the Supreme Court’s decision in
Bond v. United States, 134 S. Ct. 2077 (2014), Gamez contends that a
conviction in the absence of such proof impermissibly intrudes upon the police
power of the States.
“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 Gamez’s forfeited objection to the
factual basis for his guilty plea. See id. To establish plain error, Gamez 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
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No. 16-10243
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, 226-31 (5th Cir. 2000). We have also held that the
internet is a means of facility of interstate commerce under § 2422(b). United
States v. Barlow, 568 F.3d 215, 220-21 (5th Cir. 2009). The Supreme Court’s
decision in Bond did not abrogate the holdings of these cases. See United States
v. McCall, __F.3d__, No. 15-10894, 2016 WL 4409292, *4 (5th Cir. Aug. 18,
2016) (§ 2251(a) case). As Gamez concedes, the district court’s finding that
there was sufficient factual bases for his guilty plea was not a clear or obvious
error in light of this caselaw. See Puckett, 556 U.S. at 135. He raises the issues
to preserve them for further review.
Alternatively, Gamez asserts that Kallestad was 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 further asserts in the alternative that Barlow was
wrongly decided “because [§ 2422(b)] should be read to exclude [transmissions
not related to the instant case].” Finally, he 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,
Gamez is correct that these issues are foreclosed.
The judgment of the district court is AFFIRMED. The Government’s
motions for summary affirmance and, alternatively, for an extension of time to
file an appellate brief, are DENIED.
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