IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-30505

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

JAMES A. WALKER, JR.,

Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:10-CR-143-1

Before BARKSDALE, STEWART, and PRADO, Circuit Judges.

PER CURIAM:*

James A. Walker, Jr., appeals his guilty-plea conviction for receiving child

pornography, in violation of 18 U.S.C. § 2252(a)(2). He contends: the indictment

failed to charge him with an offense under § 2252(a)(2) because it did not allege

specifically that he knew the visual depictions he received involved the use of a

minor engaging in sexually-explicit conduct; and, as a result, the defect is

jurisdictional and not waived by his guilty plea. 

United States Court of Appeals

Fifth Circuit

F I L E D

May 4, 2012

Lyle W. Cayce

Clerk

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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No. 11-30505

Walker states that our precedent would foreclose this appeal; however,

relying on cases from other circuits, he contends our court has erroneously

interpreted United States v. Cotton, 535 U.S. 625, 630-31 (2002). Although our

court has an unpublished opinion directly on point, our unpublished opinions are

not binding precedent. See United States v. Templet, 431 F. App’x 270, 271 (5th

Cir. 2011) (per curiam); see, e.g., 5th Cir. R. 47.5.4. 

“[W]hen a defendant enters a voluntary and unconditional guilty plea, the

plea has the effect of waiving all nonjurisdictional defects in the prior

proceedings”. United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th Cir.

2008) (internal quotation marks omitted). In reaching that conclusion, our court

noted that, under Cotton, indictment defects do not deprive a court of

jurisdiction. Id.; see also United States v. Cothran, 302 F.3d 279, 283 (5th Cir.

2002).

Walker does not contend that his guilty plea was unknowing or

involuntary, and he admitted in the signed factual basis that he knowingly

searched for child pornography to download onto his computer. Thus, he waived

any challenge to the sufficiency of the indictment by pleading guilty. See

Daughenbaugh, 549 F.3d at 1012-13.

The written judgment provides the offense of conviction was receipt and

possession of child pornography. Pursuant to his plea agreement, however,

Walker pleaded guilty only to count one of the indictment, which charged him

with receipt of child pornography. In accordance with that agreement, the

district court dismissed count two, which charged Walker with possession of

child pornography.

“After giving any notice it considers appropriate, the court may at any

time correct a clerical error in a judgment, order, or other part of the record, or

correct an error in the record arising from oversight or omission.” Fed. R. Crim.

P. 36. Rule 36 is the appropriate vehicle for changes that do not substantively

alter the orally announced sentence but instead correct errors in the written

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No. 11-30505

judgment. United States v. Spencer, 513 F.3d 490, 491-92 (5th Cir. 2008). Our

court has noted sua sponte that it must remand for the purpose of correcting

irregularities contained in the judgment. United States v. Johnson, 588 F.2d

961, 964 (5th Cir. 1979) (citing Fed. R. Crim. P. 36). Because the judgment does

not properly reflect the crime of conviction, this matter is remanded for the

limited purpose of correcting the judgment to reflect that Walker was convicted

of receipt of child pornography.

AFFIRMED; LIMITED REMAND FOR CORRECTION OF JUDGMENT.

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