United States v. Gerson Tovar ( 2018 )

Case: 17-11004 Document: 00514515080 Page: 1 Date Filed: 06/15/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-11004 FILED
Summary Calendar June 15, 2018
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GERSON GONZALEZ TOVAR,
Defendant-Appellant
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-103-1
Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
Gerson Gonzalez Tovar appeals his conviction for production of child
pornography in violation of 18 U.S.C. § 2251(a). In the factual basis for his
guilty plea, Tovar admitted that he produced a visual depiction and that it “was
produced using materials that have been mailed, shipped, or transported in
interstate or foreign commerce.”
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11004 Document: 00514515080 Page: 2 Date Filed: 06/15/2018
No. 17-11004
Tovar asserts that the factual basis for his guilty plea is insufficient
under Federal Rule of Criminal Procedure 11 because he did not admit that
the offense caused the materials to move interstate in the recent past. Relying
on the Supreme Court’s decision in Bond v. United States, 134 S. Ct. 2077
(2014), Tovar contends that a conviction in the absence of such proof
impermissibly intrudes upon the police power of the States.
We review Tovar’s forfeited objection to the factual basis for plain error.
See United States v. Trejo, 610 F.3d 308, 313 (5th Cir. 2010) (footnote omitted).
To establish plain error, Tovar 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 only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
We have rejected similar challenges. See, e.g., United States v. Looney,
606 F. App’x 744, 746-47 (5th Cir. 2015). Given the current state of the law,
as Tovar concedes, the district court’s finding that there was a sufficient factual
basis for his guilty plea was not a clear or obvious error. See Puckett, 556 U.S.
at 135. He raises the issue to preserve it for further review.
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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