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* [UNPUBLISHED]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 court1

 sentenced him to 120

months in prison and supervised release for life. In this appeal of Perez’s conviction

and sentence, counsel has moved to withdraw and has filed a brief under Anders v.

California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable. In a pro

se supplemental brief, Perez argues (1) the indictment was defective; (2) the district

court lacked jurisdiction because section 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 that 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 waived without his consent; and (5) counsel was

ineffective on appeal. 

Counsel’s and Perez’s arguments fail, and we reject them seriatim: (1) the

district court did not abuse its discretion 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 challenged 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 minors engaged in sexual activity, is not beyond

Congress’s commerce power, because it contains an express jurisdictional element

requiring transport in interstate and foreign commerce of visual depictions or materials

used to produce depictions), and there was 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 defendant and 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 describe how he was

prejudiced); (5) Perez clearly waived his right to trial in his plea agreement, and he

has always maintained that he knowingly possessed child pornography on his

computer, disputing only the number of videos 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 interstate commerce by any means); and (6)

Perez cannot demonstrate the requisite prejudice from counsel’s alleged deficiencies

on appeal, see United States v. Davis, 508 F.3d 461, 463-64 (8th Cir. 2007) (holding

the defendant did not establish prejudice where counsel tendered an Anders brief,

because an appellate court reviews the record and will order full briefing of any

nonfrivolous issues). 

Finally, having reviewed the record independently 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. 

______________________________