USA v. Francisco Romero

Filing

UNPUBLISHED OPINION FILED. [16-51470 Affirmed] Judge: FPB, Judge: LHS, Judge: GJC. Mandate issue date is 12/28/2017 for Appellant Francisco Romero [16-51470]

Case: 16-51470

Document: 00514262920

Page: 1

Date Filed: 12/06/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-51470
Summary Calendar

United States Court of Appeals
Fifth Circuit

FILED
December 6, 2017
Lyle W. Cayce
Clerk

UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
FRANCISCO ROMERO,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:15-CR-497-1

Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM: *
Francisco Romero appeals his conviction for production of child
pornography, in violation of 18 U.S.C. § 2251(a). According to Romero, his
conviction violates the Commerce Clause of the U.S. Constitution because the
alleged production of child pornography was purely intrastate and noneconomic. In advancing this argument, Romero acknowledges that this court
previously has rejected similar Commerce Clause arguments, see United States

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
*

Case: 16-51470

Document: 00514262920

Page: 2

Date Filed: 12/06/2017

No. 16-51470
v. Kallestad, 236 F.3d 225, 226-31 (5th Cir. 2000) and United States v. Dickson,
632 F.3d 186, 192 (5th Cir. 2011), but he contends that this court’s prior rulings
do not govern here, particularly in light of Bond v. United States, 134 S. Ct.
2077, 2086 (2014) and Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 550
(2012) (National Federation).
We review the constitutional challenge de novo. Kallestad, 236 F.3d at
227. We have held that the Commerce Clause authorizes Congress to prohibit
local, intrastate production of child pornography where the materials used in
the production were moved in interstate commerce. Dickson, 632 F.3d at 192;
Kallestad, 236 F.3d at 226-31. The Supreme Court’s decision in Bond did not
abrogate the holdings of these cases. See United States v. McCall, 833 F.3d
560, 564-65 (5th Cir. 2016). Likewise, 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.” United States v. Alcantar,
733 F.3d 143, 146 (5th Cir. 2013). Therefore, we are bound by Kallestad and
Dickson, which render Romero’s arguments unavailing.
AFFIRMED.

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