IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10787

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

JAMES BRIAN RIVERS,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:13-CR-328-1

Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

James Brian Rivers appeals his conviction for production of child 

pornography under 18 U.S.C. § 2251(a) and possession of prepubescent child 

pornography under 18 U.S.C. § 2252A(a)(5)(B). In the factual basis for his plea, 

he admitted that the child pornography was produced using materials that 

were “mailed, shipped, or transported in or affecting interstate or foreign 

commerce” and possessed on a cellular telephone that was produced using 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

March 19, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-10787 Document: 00512975113 Page: 1 Date Filed: 03/19/2015
No. 14-10787

materials that were “mailed, shipped, or transported in or affecting interstate 

or foreign commerce.” 

Rivers contends that § 2251(a) and § 2252A(a)(5)(B) should be construed 

as requiring the Government to prove that the materials used to produce or 

possess the child pornography were recently moved in interstate commerce or 

were moved in interstate commerce for the purpose of committing the offenses.

Relying on the Supreme Court’s decision in Bond v. United States, 134 S. Ct. 

2077 (2014), he contends that a conviction in the absence of such proof 

impermissibly intrudes upon the police power of the States. Rivers argues 

that, as he did not admit such facts, the factual basis for his guilty plea was 

insufficient under Federal Rule of Criminal Procedure 11. 

“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). As Rivers concedes, plain error review applies to his forfeited 

objection to the factual sufficiency of his plea. See id. To establish plain error, 

he must show a forfeited error that is clear or obvious 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 

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). As Rivers concedes, the district 

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No. 14-10787

court’s finding of an adequate factual basis 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 issue to preserve it for further review.

Alternatively, Rivers asserts that Dickson and Kallestad were 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 commercial activity. He also argues, in the alternative, that plain 

error review should not apply to his forfeited objection to the factual basis. 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, Rivers 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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 Case: 14-10787 Document: 00512975113 Page: 3 Date Filed: 03/19/2015