USA v. Rafael Zapata
Filing
UNPUBLISHED OPINION FILED. [17-10232 Affirmed] Judge: WED, Judge: EBC, Judge: GJC. Mandate pull date is 10/25/2017 for Appellant Rafael Almeida Zapata; denying motion for summary affirmance filed by Appellee USA [8565074-2]; denying motion to extend time to file appellee's brief filed by Appellee USA [8565074-3] [17-10232]
Case: 17-10232
Document: 00514182765
Page: 1
Date Filed: 10/04/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-10232
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
October 4, 2017
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAFAEL ALMEIDA ZAPATA,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-134-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Rafael Almeida Zapata appeals his conviction for transporting and
shipping child pornography in violation of 18 U.S.C. § 2252A(a)(1). In the
factual basis for his guilty plea, Zapata admitted, inter alia, that he “knowingly
transported and shipped an image of child pornography … from the internet.”
He now argues that the factual basis is insufficient because he did not admit
that the offense involved media that moved images he produced over state
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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Document: 00514182765
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Date Filed: 10/04/2017
No. 17-10232
lines, as § 2252A(a)(1) should be construed to require.
Relying on Bond
v. United States, 134 S. Ct. 2077 (2014), he contends that a conviction in the
absence of such proof impermissibly intrudes upon the police power of the
States and offends the Commerce Clause.
“Rule 11(b)(3) requires a district court taking a guilty plea to make
certain that the factual conduct admitted by the defendant is sufficient as a
matter of law to establish a violation of the statute to which he entered his
plea.” United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (footnote
omitted). Because Zapata did not raise this claim in the district court, we
review for plain error review only. See id. To establish plain error, Zapata
must show a forfeited error that is clear or obvious and that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error but
will do so only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. See id.
We have held that the Commerce Clause authorizes Congress to prohibit
local, intrastate possession and production of child pornography where the
materials used in the production were moved in interstate commerce. See
United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011); United States v.
Kallestad, 236 F.3d 225, 226-31 (5th Cir. 2000). We have also held that the
internet is a means of facility of interstate commerce. United States v. Barlow,
568 F.3d 215, 220-21 (5th Cir. 2009). Bond did not abrogate these cases. See
United States v. McCall, 833 F.3d 560, 564 (5th Cir. 2016), cert. denied 137 S.
Ct. 686 (2017). As Zapata concedes, the district court’s finding that there was
sufficient factual bases for his guilty plea was not a clear or obvious error in
light of this caselaw. See Puckett, 556 U.S. at 135.
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The judgment of the district court is AFFIRMED. The Government’s
motions for summary affirmance and, alternatively, for an extension of time to
file an appellate brief, are DENIED.
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