United States v. Bevers ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2009
No. 08-30689
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
ALAN D BEVERS
Defendant-Appellant
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:07-CR-150-1
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Alan D. Bevers appeals his conditional guilty plea conviction to 18 U.S.C.
§ 2251(a), sexual exploitation of a child. He argues that the factual basis of his
plea did not establish that the victim engaged in “sexually explicit conduct”
because the videotape in question did not depict a lascivious exhibition of the
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30689
minor’s genitals or pubic area. We review the district court’s factual finding for
clear error.1
Using the “Dost factors” adopted by this court to determine whether a
visual depiction of a minor constitutes a “lascivious exhibition of the genitals or
pubic area,” 2 the district court pointed to several pertinent facts: that the
videotape focused on the fully nude genitalia of a female child taking a shower;
captured the child’s buttocks and breast; and was taped with the purpose of
eliciting a sexual response from the viewer.
We cannot say that the district court’s finding that the depiction at issue
constituted a lascivious exhibition of the genitals or pubic area of the victim is
clear error. The sexually explicit conduct element of § 2251(a) was met, and the
factual basis is sufficient to support Bevers’s plea.3
AFFIRMED.
1
See U.S. v. Reasor, 418 F.3d 466, 474 (5th Cir. 2005); U.S. v. Boudreau,
250 F.3d 279, 283 (5th Cir. 2001).
2
U.S. v. Grimes, 244 F.3d 375, 381 (5th Cir. 2001); see U.S. v. Dost, 636 F.
Supp. 828 (S.D. Cal. 1986).
3
See F ED. R. C RIM. P. 11(b)(3).
2