1 The Honorable Jimm Larry Hendren, Chief Judge, United States District Court for the Western District of Arkansas. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-3071

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the Western * District of Arkansas. Eduardo Perez-Carrillo, * * [UNPUBLISHED] Appellant. *

___________ Submitted: January 25, 2010 Filed: February 10, 2010

___________ Before WOLLMAN, RILEY, and SMITH, Circuit Judges.

___________ PER CURIAM. Eduardo Perez-Carrillo (Perez) pled guilty to possessing child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The district court 1 sentenced him to 120 months in prison and supervised release for lif e. In this appeal of Perez’s conviction and sentence, counsel has m oved to withdraw and has f iled a brief under Anders v. California , 386 U.S. 738 (1967), arguing that the se ntence is unreasonable. In a pro se supplemental brief, Perez argues (1) the indictment was defective; (2) the district court lacked jurisdiction because s ection 2252A(a)(5)(B) exceeded Congress’s-2- Commerce Clause authority, and there was no evidence the images traveled across state lines; (3) his due process rights and Federal Rule of Criminal Procedure 32 were violated by the court’s failure to verify th at Perez and counsel had read and discussed the presentence report (PSR), and he was prejudiced because he could have raised defenses to culpability for individual images; (4) he is actually innocent of the charges and his right to a jury trial was waivedwithout his consent; and (5) counsel was ineffective on appeal.

Counsel’s and Perez’s arguments fail, a nd we reject them seriatim: (1) the district court did not abuse its discreti on in imposing the 120-month prison sentence,

see Gall v. United States , 552 U.S. 38, 51 (2007); (2) the indictment sufficiently charged the offense, see United States v. Jenkins-Watts , 574 F.3d 950, 968 (8th Cir. 2009) (describing when the indictment is ch allenged for the first time after the verdict is returned, an appellate court upholds the indictment unless the indictment is so defective that by no reasonable construction can it be said to charge an offense of which defendant was convicted); (3 ) section 2252A(a)(5)(b) does not exceed Congress’s Commerce Clause power, see United States v. Bausch , 140 F.3d 739, 741 (8th Cir. 1998) (deciding 18 U.S.C. § 2252(a )(4)(B), which criminalizes possession of 3 or more visual depictions of mi nors engaged insexual activity, is not beyond Congress’s commerce power, because it contai ns an express jurisdictional element requiring transport in interstate and foreign commerce of visual depictions or materials used to produce depictions), and there wa s sufficient evidence the images traveled through interstate commerce, United States v. Rayl , 270 F.3d 709, 715 (8th Cir. 2001) (concluding evidence that child pornography images traveled through computer servers located outside defendant’s state to get to his computer was sufficient to show that images were transported through interstate commerce); (4) Perez cannot show plain error resulting from the court’s Rule 32 error, as the prejudice he alleges resulted from his counsel’s failure, not the court’s error, see United States v. Prado , 204 F.3d 843, 845 (8th Cir. 2000) (stating a failure to verify the defendantand attorney had read and discussed the PSR is waived and harmless where the defendant did not-3- request additional time to review the PSR and did not desc ribe how he was prejudiced); (5) Perez clearly waived his ri ght to trial in his plea agreement, and he has always maintained that he know ingly possessed child pornography on his computer, disputing only the number of vide os of which he was aware and who was responsible for downloading the videos, see Rayl , 270 F.3d at 714 (explaining, one violates § 2252A(a)(5)(B) by knowingly possessing materials that contain child pornography and were transported in inters tate commerce by any means); and (6) Perez cannot demonstrate the requisite pr ejudice from counsel’s alleged deficiencies on appeal, seeUnited States v. Davis , 508 F.3d 461, 463-64 (8th Cir. 2007) (holding the defendant did not establish prej udice where counsel tendered an Anders brief, because an appellate court reviews the r ecord and will order full briefing of any nonfrivolous issues).

Finally, having reviewed the recordindependently under Penson v. Ohio , 488 U.S. 75 (1988), we have found no nonfrivolous issues. We grant counsel’s motion to withdraw, and we affirm the district court’s judgment.

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