IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-20872

_____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM KENNETH PEEBLES,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

June 21, 2002

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.

BY THE COURT:

The Supreme Court of the United States, by order in No. 01-

1058, William Kenneth Peebles v. United States, granted appellant’s

petition for a writ of certiorari, vacated the judgment in the

case, and remanded it to us for further consideration in the light

of Ashcroft v. Free Speech Coalition, 535 U.S. ___ (2002).

IT IS ORDERED that the captioned case be and it is hereby

remanded to the United States District Court for the Southern

District of Texas for further proceedings and disposition

consistent with the aforesaid order of the Supreme Court.
IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-20872

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIAM KENNETH PEEBLES,

Defendant-Appellant.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-00-CR-3-1
No. 00-20872

-3-

* 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that this opinion should not be published and is not precedent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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October 16, 2001

Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM:*

William Kenneth Peebles appeals his conditional guilty-plea

conviction and sentence for possession of child pornography. 

In accordance with the reservation of rights in his plea

agreement, Peebles contends that the definition of “child

pornography” in the Child Pornography Protection Act (CPPA) is

unconstitutionally overbroad and vague because it includes any

visual depiction that “appears to be, of a minor engaging in

sexually explicit conduct.” 18 U.S.C. § 2256(8)(B) (emphasis

added). Peebles concedes that this argument is foreclosed by

United States v. Fox, 248 F.3d 394, 403-07 (5th Cir. 2001), which

held the definition not to be overbroad or vague. Peebles raises

the issue only to preserve it for possible Supreme Court review.

Peebles contends there is no factual basis for his plea

because the record does not establish that the pornographic images

were “transported in interstate or foreign commerce.” See 18

U.S.C. § 2252A(a)(2). The factual basis written into the plea
No. 00-20872

-4-

agreement and established at the plea hearing showed that Peebles

downloaded the images onto a computer and through a network server

that transmitted the images across state lines. The district court

complied with Rule 11(f) by “making such inquiry as [satisfied] it

that there is a factual basis for the plea.” Fed. R. Crim. P.

11(f). 

Peebles challenges the special condition of supervised release

that requires him to register as a sex offender in accordance with

state law. Peebles validly waived any appeal of his sentence

except for an upward departure from the guidelines. See Fed. R.

Crim. P. 11(c)(6); see United States v. Robinson, 187 F.3d 516, 518

(5th Cir. 1999). The district court was required by 18 U.S.C.

§ 3583(d) to make sex-offender registration a condition of

Peebles’s supervised release. Therefore the requirement was not an

“upward departure,” and Peebles therefore waived his right to

appeal it.

The conviction and sentence are AFFIRMED.