United States v. Garett Albert Dykes , 227 F. App'x 834 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 30, 2007
No. 06-15484 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00108-CR-T-N
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GARETT ALBERT DYKES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(May 30, 2007)
Before BIRCH, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Garett Albert Dykes appeals his conviction for sexual exploitation of a child.
See 18 U.S.C. § 2251(a). Dykes argues that section 2251(a) is unconstitutional
both on its face and as applied to his case on the ground that section 2251(a) is
beyond the power of Congress under the Commerce Clause. We affirm.
We review the constitutionality of a challenged statute de novo. United
States v. Ballinger, 395 F.3d 1218, 1225 (11th Cir. 2005).
Dykes recorded a videotape of himself fondling the genitals of an eight-year-
old girl who was spending the night with his daughter. The recording occurred
wholly in the State of Alabama and remained there. The camera and videotape
used to produce the child pornography were manufactured outside the State of
Alabama. Dykes pleaded guilty to one count of sexual exploitation of a child and
reserved the right to argue on appeal that section 2251(a) is unconstitutional as
applied to his conduct.
Dykes’s argument that section 2251(a) is unconstitutional is foreclosed by
our precedents. Section 2251(a) prohibits the production of child pornography
“using materials that have been mailed, shipped, or transported in interstate or
foreign commerce by any means.” In United States v. Maxwell, 446 F.3d 1210,
1218 (11th Cir. 2006), we held that “it is within Congress’s authority to regulate
all intrastate possession of child pornography, not just that which has traveled in
interstate commerce or has been produced using materials that have traveled in
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interstate commerce.” In United States v. Smith, 459 F.3d 1276, 1285 (11th Cir.
2006), we held that “Congress could have rationally concluded that the inability to
regulate intrastate possession and production of child pornography would, in the
aggregate, undermine Congress’s regulation of the interstate child pornography
market,” and upheld the application of section 2251(a) to an individual who
produced pornographic photographs using Kodak paper and processing equipment
that had traveled interstate. In the light of Maxwell and Smith, Dykes’s argument
fails.
Dykes’s conviction is
AFFIRMED.
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