United States Court of Appeals

for 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, 847-49 (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 basis 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: 05/01/2023
No. 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 constitutionality 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 not 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 previously 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 tenuously 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 

not 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 228-31.

Accordingly, the Government’s motion for dismissal is DENIED

and the district court’s judgment is AFFIRMED.

Case: 22-10915 Document: 00516732378 Page: 2 Date Filed: 05/01/2023