United States v. Earle , 216 F. App'x 824 ( 2007 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
February 20, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff-Appellee,
v. No. 06-4150
(D.C. No. 1:05 CR-131-TC)
CHARLES M ICHAEL EARLE, a/k/a (District of Utah)
Charles M . Earle and a/k/a M ike Earle,
Defendant-Appellant.
OR DER AND JUDGM ENT *
Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.
On February 7, 2006, M r. Earle conditionally pled guilty to one count of
production of child pornography, in violation of 18 U.S.C. § 2251(a), stipulating
to the follow ing facts:
Between the Fall of 2004 and Spring of 2005, in the Central Division
of the District of Utah, I knowingly coerced the minor, Child M to
participate in the production of a video of child pornography. I
instructed Child M to turn my camcorder towards herself and film
herself, unclothed below the waist, using a vibrator. M y voice can
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The case is
therefore ordered and submitted without oral argument. This order and judgment
is not binding precedent except under the doctrines of law of the case, res judicata
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
be heard on this video instructing her in this fashion. Child M was 7
years old at the time of these videos. The images w ere taken with
my camcorder which was produced with materials that had been
shipped in interstate commerce. I did this in violation of 18 U.S.C.
§ 2251(a).
Plea Proffer at 5. As part of this plea, however, M r. Earle preserved his right to
contest one narrow matter -- whether his purely intrastate production of child
pornography had a sufficient nexus to interstate commerce to give rise to federal
jurisdiction under the Constitution. Id. On June 12, 2006, the D istrict Court
sentenced M r. Earle, inter alia, to the mandatory minimum of 180 months of
incarceration. See Crim. J. at 1-5; see also 18 U.S.C. §§ 2251(a) and (e). The
District Court also took up, and rejected, M r. Earle’s preserved subject matter
jurisdiction argument, holding it barred by our decision in United States v.
Jeronimo-Bautista, 425 F.3d 1266 (10th Cir. 2005).
On appeal, M r. Earle reiterates his view that the “purely local production of
child pornography [is] not within the purview of the federal government.” A plt.
Op. Br. at 4. M r. Earle expressly acknowledges, however, that Jeronimo-Bautista
“forecloses the possibility of a favorable ruling on [his] motion” from this panel
and that his appeal is brought “solely to preserve” the argument. M ot. to D ismiss
at 1. W e agree with M r. Earle’s assessment of our prior decision. In Jeronimo-
Bautista, we squarely held that Congress properly exercised its regulatory powers
under the Commerce Clause when it passed 18 U.S.C. § 2251(a), explaining that
“Congress’ prohibition against the intrastate possession or manufacture of child
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pornography is a rational (and commonly utilized) means of regulating comm erce
in that product.” 425 F.3d at 1271 (internal quotation marks omitted). This is so,
we noted, because “the intrastate production of child pornography could, in the
aggregate, have a substantial effect on the interstate market for such materials,”
thus affecting the supply and demand balance nationwide, id. at 1272; Congress’s
decision to target intrastate production, we held, “represents a rational
determination that such local activities constitute an essential part of the interstate
market for child pornography that is well within [its] power to regulate.” Id. at
1273. Until and unless a higher authority indicates otherwise, we are bound by
this holding and are therefore constrained, as M r. Earle agrees, to reject his
appeal.
A FFIR ME D.
ENTERED FOR THE COURT
Neil M . Gorsuch
Circuit Judge
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