# United States Court **of Appeals**  **f or the Fifth Circuit** 

**____________** No. 22
- 10915 Summary Calendar

**____________ United States of America,**  Plaintiff

— Appellee **,** versus **Mark Alan Miller,** Defendant

— Appellant **.**

**______________________________** Appeal from the United States District Court for the Northern District of Texas USDC No. 3:20
- CR
- 284
- 1

**____________________ __________**  Before **Stewart, Duncan,** and **Wilson,** Circuit Judges **. Per Curiam**  **:** ***** Mark Alan Miller appeals his conviction and sentence for production of child pornography , 18 U.S.C. § 2251(a) . Relying on the Supreme Court’s decision in Bond v. United States , 572 U.S. 844, 8 47
- 49 (2014) , he challenges the sufficiency of the factual basis for his conviction and argues that the district court erred by accepting a guilty plea based on a factual basi s that

**_____________________** * This opinion is not designated for publication. See **5th Cir .**  **R .**  47.5. United States Court of Appeals Fifth Circuit 

### FILED May 1, 2023 Lyle W. Cayce Clerk Case: 22-10915 Document: 00516732378 Page: 1 Date Filed: 05/01/2023No. 22
- 10915

2 failed to admit an offense. The Government contends that Miller is precluded from raising his claim under the appeal waiver. It argues that while Miller frames his argument as a challenge to the factual basis, it is really a challenge to the const itutionality of § 2251(a), which he waived by entering a plea agreement. We pretermit consideration of the applicability of the appeal waiver and reach the merits. See United States v. DeLeon , 915 F.3d 386, 389 n.2 (5th Cir. 2019). Even if Miller did no t waive the error he complains of by pleading guilty, the issue does not survive plain
- error review. It is well
- settled that the Commerce Clause authorizes Congress to prohibit local, intrastate production of child pornography where the materials used in the production had been moved in interstate commerce. See United States v. Bailey , 924 F.3d 1289, 1290 (5th Cir. 2019); United States v. Dickson , 632 F.3d 186, 189
- 90 (5th Cir. 2011); United States v. Kallestad , 236 F.3d 225, 226
- 31 (5th Cir. 2000). Miller concedes that the cell phone used in his crime moved in interstate or foreign commerce and that his argument on this point is foreclosed by current law. See Bailey , 924 F.3d at 1290. This court has also pr eviously rejected Miller’s alternative argument, based on National Federation of Independent Business v. Sebelius , 567 U.S. 519, 551 (2019), that the Commerce Clause authorizes Congress to regulate only commercial activity and not activity that is tenuousl y related to interstate commerce. See United States v. Alcantar , 733 F.3d 143, 146 (5th Cir. 2013). Under the rule of orderliness, we are “not at liberty to overrule our settled precedent because the Supreme Court’s decision in National Federation did no t overrule it.” Id. This court is bound by Dickson and Kallestad and Miller is correct that relief under plain
- error review is unavailable. See Dickson , 632 F.3d at 192; Kallestad , 236 F.3d at 22 8 - 31. Accordingly, t he Government’s motion for dismissal i s **DENIED** and the district court’s judgment is **AFFIRMED** . Case: 22-10915 Document: 00516732378 Page: 2 Date Filed: 05/01/2023