In the

United States Court of Appeals

For the Seventh Circuit

No. 08-2515

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

STEVEN LACEY,

Defendant-Appellant.

Appeal from the United States District Court 

for the Southern District of Illinois.

No. 07 CR 40052—Michael J. Reagan, Judge.

ARGUED FEBRUARY 20, 2009—DECIDED JUNE 12, 2009

Before BAUER, MANION, and SYKES, Circuit Judges.

MANION, Circuit Judge. Steven Lane Lacey pleaded

guilty to possessing child pornography in violation of

18 U.S.C. § 2252A(a)(5)(B). The district court sentenced

him to 108 months’ imprisonment. Lacey appeals, challenging both his conviction and his sentence. We affirm.
2 No. 08-2515

I.

While investigating two Yahoo groups transmitting

images of child pornography over the internet, Federal

Bureau of Investigation agents traced one of the images to

47-year-old Stephen Lane Lacey, who posted the image of

a nude prepubescent female engaged in oral sex with an

adult male. When the agents interviewed Lacey at his

workplace, he admitted to trading child pornography over

the Internet since 1996. He also admitted that he used one

of his two home computers to share and view child

pornography. Agents seized a computer hard drive and

several CD-ROMs after Lacey consented to a search of

his home. The items seized contained several thousand

still images and approximately two dozen videos of

child pornography.

Lacey was indicted and pleaded guilty to one count of

possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B). At the change of plea hearing, the

district court asked Lacey, among other things, if the

government could prove beyond a reasonable doubt the

“jurisdictional element” of a § 2252A(a)(5)(B) violation—that the child pornography “had been transported,

shipped or mailed in interstate or foreign commerce,

including by computer.” Lacey responded, “Yes, sir.”

Later, while reciting the factual basis for the plea, the

government’s attorney asserted that the “images have

traveled in interstate commerce to end up in . . . Illinois.”

The court asked Lacey if the government could prove that

averment beyond a reasonable doubt; Lacey again responded, “Yes, sir.” Based on those affirmations, the

court accepted Lacey’s plea.
No. 08-2515 3

The PSR listed 25 video files as relevant conduct. However, 1

the district court, after examining the videos, culled that

number down to 12 after excluding the videos that were

either duplicates or did not clearly depict minors.

Prior to sentencing, Lacey advanced several objections

to the presentence report (“PSR”). Among those objections

was his claim that he was not subject to a five-level enhancement under U.S.S.G. § 2G2.2(b)(7)(D) for possessing

over 600 images of child pornography. Instead of the 5,000-

plus images attributed to him in the PSR, Lacey insisted

he was only responsible for the four images listed in

the indictment and to which he pleaded guilty of possessing. According to Lacey, any amount over the four

images was unreliable because the government had not

produced evidence that any of the other images depicted

actual minors as opposed to computer-generated “virtual” children.

After a thorough review of the images, the district court

rejected Lacey’s objection and applied the enhancement.

It gave several reasons for doing so. First, the court discussed twelve of the video images the PSR included as

relevant conduct. It found that the videos featured actual 1

children because, to the court’s knowledge, making a

movie with virtual actors who were indistinguishable

from real actors was impossible. Because the Guidelines

treat twelve videos of child pornography as equivalent

to over 600 still images, the court found the five-level

enhancement justified on that basis alone.

Next, the court turned to the still images recovered from

Lacey’s computer and the CD-ROMs in his possession.
4 No. 08-2515

The NCMEC maintains a database of known victims of child 2

pornography, which can be used for purposes of comparison.

Discarding duplicate images, those of poor quality or

small size, and any image that did not clearly portray

minors, the district court narrowed the total number

listed in the PSR to around 2,000 images. The court stated

that it visually inspected those remaining images,

stopping its inspection only after it had determined that

there was “no question” that at least 1,000 of them involved real children. The court noted its calculation was

consistent with the government’s report from the

National Center for Missing and Exploited Children

(“NCMEC”), which concluded that at least 1,222 of the 2

images from Lacey’s hard drive and his CD-ROMs involved real children. On those bases, the district court

applied the enhancement.

In addition to the five-level enhancement under

§ 2G2.2(b)(7)(D), the district court added a four-level

enhancement under U.S.S.G. § 2G2.2(b)(4) for material

that portrayed sadistic and masochistic conduct. The

court identified two images and one video that justified

the enhancement: a photograph of a child being sexually

abused while blindfolded; another image of a child,

blindfolded with hands bound and a rope around the

neck, who was being sexually abused; and a video of a

young child screaming and crying as she was raped by

an older man. After applying that enhancement, the

court calculated Lacey’s offense level at 33 and his sentencing range at 135 to 168 months’ imprisonment. The
No. 08-2515 5

During oral argument, Lacey’s attorney also attempted to 3

challenge the constitutionality of § 2252A as applied to the

Internet. In his appellate brief, however, Lacey specifically states

that he is not challenging the constitutionality of that statute.

Appellant br. at 11-12. He has therefore waived any such

argument.

statutory maximum for Lacey’s offense was ten years, and

the court imposed a sentence of 108 months’ imprisonment. Lacey appeals.

II.

On appeal, Lacey first challenges the evidence establishing the jurisdictional element of his § 2252A(a)(5)(B)

conviction. He argues that the government did not 3

produce any evidence that the images found on his hard

drive and CD-ROMs had been transported in interstate

commerce. Lacey acknowledges that he did not raise this

issue in the district court and that a guilty plea ordinarily

waives all objections to a conviction. See, e.g., United States

v. Harvey, 484 F.3d 453, 455 (7th Cir. 2007). However, Lacey

contends that a sufficiency challenge to the jurisdictional

element cannot be waived. In the alternative, he argues

that the district judge failed in his obligation under

Federal Rule of Criminal Procedure 11(b)(3) to satisfy

himself that there was a factual basis for the jurisdictional

element of Lacey’s conviction.

Section 2252A(a)(5)(B) proscribes knowing possession

of child pornography “that has been mailed, or shipped or
6 No. 08-2515

transported . . . in or affecting interstate or foreign commerce by any means, including by computer.” That quoted

language is commonly referred to as the “jurisdictional

element” of the offense. See United States v. Anderson, 280

F.3d 1121, 1125 (7th Cir. 2002). Lacey claims that his

challenge to that element of the offense cannot be

waived by his guilty plea due to its jurisdictional nature.

Lacey correctly notes that a guilty plea does not waive

certain jurisdictional challenges to a conviction—challenges that go “to the very power of the State to bring the

defendant into court to answer the charge brought

against him.” Blackledge v. Perry, 417 U.S. 21, 30 (1974);

see also United States v. Bell, 70 F.3d 495, 496-97 (7th Cir.

1995). However, contrary to Lacey’s contention, his

attack on the evidence supporting the jurisdictional

element of his § 2252A(a)(5)(B) conviction is not that type

of jurisdictional challenge. A “jurisdictional element” is

simply an element of a federal crime. It is jurisdictional

“only in the shorthand sense that without that [interstate

commerce] nexus, there can be no federal crime . . . . It is

not jurisdictional in the sense that it affects a court’s

subject matter jurisdiction, i.e., a court’s constitutional or

statutory power to adjudicate a case, here authorized by

18 U.S.C. § 3231.” United States v. Martin, 147 F.3d 529, 532

(7th Cir. 1998) (internal citation omitted). As an offense

element, it does not implicate the court’s power to hear a

case and can be waived by a guilty plea—as it was here.

See Milhem v. United States, 834 F.2d 118, 120 (7th Cir. 1987)

(noting that “a plea of guilty to an offense constitutes a

waiver of any claim of insufficiency of proof on any

element of that offense”). Because Lacey has not asked to
No. 08-2515 7

set aside his guilty plea, we will not entertain his challenge

to the sufficiency of the evidence supporting the jurisdictional element of his § 2252A(a)(5)(B) conviction.

Lacey’s other claim—that the district court failed to

sufficiently apprise itself of the factual basis for Lacey’s

plea—is contradicted by the record. At the change of plea

hearing, Lacey admitted—twice—that such a factual

basis existed. First, when reciting the elements of the

crime, the district court specifically asked Lacey if he

agreed that the government could prove that the child

pornography was “transported, shipped or mailed in

interstate or foreign commerce . . . as charged,” to which

he replied, “Yes, sir.” Second, after the government set

forth the factual basis for the plea, which included that

the images of child pornography had “traveled in

interstate commerce,” the court asked Lacey if the government could prove all it had recited beyond a reasonable

doubt, to which he again replied, “Yes, sir.” Those admissions are sufficient to establish a factual basis for the

jurisdictional element of the § 2252A(a)(5)(B) offense. Cf.

United States v. Turner, 272 F.3d 380, 389-90 (6th Cir.

2001) (finding government’s contention that it was prepared to prove conspirators “had purchased items that

moved in interstate commerce in preparation for the

crime” sufficient to establish the factual basis for the

jurisdictional element of the Hobbs Act offense). We

therefore reject Lacey’s challenge to his conviction.

In addition to challenging the jurisdictional element of

his conviction, Lacey argues that the district court committed two errors at sentencing. First, Lacey contends
8 No. 08-2515

The Supreme Court held in Ashcroft v. Free Speech Coalition,

4

535 U.S. 234 (2002), that the First Amendment protects the

possession of virtual images of child pornography.

that the district court erred in finding that the offense

involved more than 600 images of child pornography, a

finding which increased his guidelines range five levels

under U.S.S.G. § 2G2.2(b)(7)(D). “We review a district

court’s application of the sentencing guidelines de novo,

but defer to the court’s finding of facts unless they are

clearly erroneous.” United States v. Irby, 240 F.3d 597, 599

(7th Cir. 2001).

Relying on United States v. Frabizio, 445 F. Supp. 2d 152

(D. Mass. 2006), Lacey claims that the district court’s

visual inspection of the images was insufficient to find

that they were images of actual minors as opposed to

virtual ones. In Frabizio, the district court concluded that 4

visual inspection alone was insufficient to differentiate

real children from virtual ones. 445 F. Supp. 2d at 155. The

district court therefore required further extrinsic

evidence beyond visual inspection—though what specifically that would entail (other than an “expert with

greater knowledge of computers”), the court did not say.

Id. at 159. Lacey would have us go even farther than

Frabizio; he argues that “[w]ithout testimony of a person

who participated in the creation of a digital image, no

authenticity of the claimed images can be determined.”

Appellant br. at 13 (emphasis added).

Lacey’s reliance on Frabizio is misplaced. Not only is

Frabizio a district court case that is not precedential author-
No. 08-2515 9

The First Circuit held in United States v. Nolan, 818 F.2d 1015, 5

1017-19 (1st Cir. 1987), that a trier of fact, without the assistance

of an expert or other evidence, can discern between an actual

and virtual image of child pornography. However, in United

States v. Hilton, 363 F.3d 58, 65-66 (1st Cir. 2004), the First

Circuit, relying on Ashcroft v. Free Speech Coalition, 535 U.S. 234

(2002), moved away from Nolan and held that the government

was obligated to produce expert testimony to establish the

reality of an image of child pornography. The First Circuit

later withdrew that opinion, United States v. Hilton, 386 F.3d 13

(1st Cir. 2004), but the status of Nolan remained in doubt until

Rodriguez-Pacheco, which reaffirmed the holding in Nolan. The

district court in Frabizio issued its ruling during that interim

of uncertainty. See Frabizio, 445 F. Supp. 2d at 156-57.

ity, Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir.

2006), but also it is no longer good law. After the district

court’s decision in Frabizio, the First Circuit definitively

held, contra Frabizio, that the government is not required

to present any further evidence of the reality of the children depicted other than the pictures themselves. See

United States v. Rodriguez-Pacheco, 475 F.3d 434, 441-42

(1st Cir. 2007). In so holding, the First Circuit was simply 5

echoing what every other court of appeals confronting this

issue has concluded: expert evidence is not required to

prove the reality of children portrayed in pornographic

images. See United States v. Salcido, 506 F.3d 729, 733-34 (9th

Cir. 2007) (per curiam) (“We agree with every other circuit

that has ruled on the issue that expert testimony is not

required for the government to establish that the images

depicted an actual minor.”); United States v. Irving, 452

F.3d 110, 120-22 (2d Cir. 2006) (rejecting appellant’s
10 No. 08-2515

claim that the government must produce evidence

extrinsic to the pictures themselves); United States v.

Farrelly, 389 F.3d 649, 654 (6th Cir. 2004) (“The question

of whether the images are virtual or real is one of fact, to be

determined by evidence about which argument can be

made to the jury.”), abrogated on other grounds by United

States v. Williams, 411 F.3d 675, 677 n.1 (6th Cir. 2005);

United States v. Slanina, 359 F.3d 356, 357 (5th Cir. 2004) (per

curiam) (holding extrinsic evidence was not required to

prove reality of children in images); United States v.

Deaton, 328 F.3d 454, 456 (8th Cir. 2003) (per curiam)

(holding that the “pictures themselves support the

district court’s determination that the images were

plainly of children under age 12, and depicted actual

children”); United States v. Hall, 312 F.3d 1250, 1260 (11th

Cir. 2002) (reviewing for plain error and determining

from the pornographic pictures themselves that “no

reasonable jury could have found that the images were

virtual children created by computer technology as opposed to actual children”).

Joining our sister circuits, we reject Lacey’s argument

that the government was required to present any expert

evidence, much less testimony from those who created

the pornographic images, to establish that the images

depicted real as opposed to virtual children. Because

Lacey has presented no evidence that would call into

question the reality of the children, we hold that the

district court’s visual inspection was sufficient to support

its finding that the images depicted actual children. See

Irving, 452 F.3d at 121. In addition, we note that the

district court, in its thorough oral discussion of this
No. 08-2515 11

We note an alternative ground for affirming the district court’s 6

application of the enhancement: the twelve videos on Lacey’s

computer that the district court found contained child pornography. On appeal, Lacey does not challenge the district court’s

finding that those videos contained real children. As those

videos by themselves support the five-level enhancement, see

U.S.S.G. § 2G2.2 application note 4(B)(ii) (2007), Lacey’s challenge to the court’s reliance on its visual inspection of the

still images makes no difference to his sentence.

issue, based its finding not just on its visual inspection

alone; it also compared its observations with the NCMEC

report to confirm that the images involved real children.

See United States v. Hoey, 508 F.3d 687, 691 (1st Cir. 2007)

(relying on similar NCMEC report).6

Lacey’s second challenge to his sentence is easily dispatched. Lacey contends that the Sixth Amendment, as

interpreted in Blakely v. Washington, 542 U.S. 296 (2004),

and its progeny, required a jury and not the district

court to determine contested factual issues at sentencing,

such as how many images Lacey possessed, if each

image depicted an actual minor, and whether an image

depicted sadistic or masochistic conduct. That argument

has no merit. See United States v. White, 472 F.3d 458, 464

(7th Cir. 2006) (characterizing this line of argument as

“frivolous”). “In the aftermath of Booker, the sentencing

guidelines are construed as advisory, not mandatory. We

have repeatedly held . . . that sentencing enhancements

need not be found by a jury beyond a reasonable doubt

because they no longer alter the statutory maximum.” Id.

(internal citation omitted). Because Lacey was sentenced
12 No. 08-2515

below the statutory maximum of ten years for his

offense, his argument is unavailing.

III.

Lacey’s plea of guilty waived his challenge to the jurisdictional element of his § 2252A(a)(5)(B) conviction.

Moreover, the district court, relying on Lacey’s admissions

during the change of plea hearing, sufficiently apprised

itself of the factual basis for the jurisdictional element.

Regarding Lacey’s sentence, the district court correctly

enhanced his sentence five levels under U.S.S.G.

§ 2G2.2(b)(7)(D) for possessing over 600 images of child

pornography based on the numerous images and videos

he possessed. Moreover, because the court sentenced

Lacey below the statutory maximum, no Sixth Amendment violation occurred. We therefore AFFIRM Lacey’s

conviction and sentence.

6-12-09