United States v. Virgil Bailey, Jr. , 924 F.3d 1289 ( 2019 )

Case: 18-11223 Document: 00514978757 Page: 1 Date Filed: 05/31/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 18-11223
Fifth Circuit
FILED
Summary Calendar May 31, 2019
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
VIRGIL LEE BAILEY, JR.,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before DAVIS, HAYNES, and GRAVES, Circuit Judges.
PER CURIAM:
Virgil Lee Bailey, Jr., appeals his convictions of production of child
pornography under 18 U.S.C. § 2251(a) and possession of child pornography
under 18 U.S.C. § 2252(a)(4), as well as his 480-month prison sentence. He
concedes that relief on the issues he asserts is foreclosed under our current
precedent, and he raises the issues to preserve them for further review. In
light of our current precedent, we dispense with further briefing and AFFIRM.
First, Bailey asserts that the factual basis supporting his guilty pleas to
the charges is insufficient under Federal Rule of Criminal Procedure 11
because he did not admit that the offenses caused the materials to move in
interstate commerce or, at least, that the materials did so in the recent past,
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No. 18-11223
as § 2251(a) and § 2252(a)(4) should be construed to require. Relying on the
Supreme Court’s decision in Bond v. United States, 572 U.S. 844 (2014), Bailey
contends that a conviction in the absence of such proof impermissibly intrudes
upon the police power of the States.
Plain error review applies to Bailey’s forfeited objection to the factual
basis for his guilty pleas. See United States v. Trejo, 601 F.3d 308, 313 (5th
Cir. 2010). We have held that the Commerce Clause authorizes Congress to
prohibit local, intrastate 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, 189-90, 192 (5th Cir. 2011); United States v.
Kallestad, 236 F.3d 225, 226-31 (5th Cir. 2000). The Supreme Court’s decision
in Bond did not abrogate the holdings of these cases. See United States v.
McCall, 833 F.3d 560, 564-65 (5th Cir. 2016). As Bailey concedes, he cannot
show error in the district court’s decision that there was a sufficient factual
basis for his guilty pleas in light of this caselaw. See Puckett v. United States,
556 U.S. 129, 135 (2009).
Alternatively, Bailey asserts that Dickson and Kallestad were wrongly
decided in light of National Federation of Independent Business v. Sebelius,
567 U.S. 519 (2012) (National Federation), and that the Commerce Clause does
not authorize Congress to impose federal criminal liability where the
defendant’s conduct is tenuously related to interstate commerce. Under the
rule of orderliness, “we are not at liberty to overrule our settled precedent
because the Supreme Court’s decision in National Federation did not overrule
it.” United States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013). Therefore,
we are bound by Kallestad and Dickson. Bailey’s arguments are unavailing.
Next, Bailey argues that the district court plainly erred when it
determined that his offense level exceeded 43 before subtracting three levels
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No. 18-11223
for acceptance of responsibility. He contends that this constitutes an
“arithmetic error” and falls within an exception to his appeal waiver. We
disagree. The error Bailey complains of is not mathematical, as we have used
that term; he challenges the district court’s application of the Guidelines, see
United States v. Reyes, 881 F.2d 155, 156 (5th Cir. 1989), not the correctness
of its arithmetic. See United States v. Minano, 872 F.3d 636, 636 (5th Cir.
2017). Thus, Bailey’s knowing and voluntary appeal waiver bars his challenge.
See United States v. Keele, 755 F.3d 752, 754 (5th Cir. 2014); United States v.
Bond, 414 F.3d 542, 544 (5th Cir. 2005).
Accordingly, 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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