USA v. Francisco Romero


UNPUBLISHED OPINION FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 2

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