USA v. Rafael Zapata


UNPUBLISHED OPINION FILED.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]

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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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 17-10232 Document: 00514182765 Page: 2 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. 2 Case: 17-10232 Document: 00514182765 Page: 3 Date Filed: 10/04/2017 No. 17-10232 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. 3

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