United States v. Hawkins ( 2021 )

Case: 21-10500 Document: 00516100229 Page: 1 Date Filed: 11/18/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 18, 2021
No. 21-10500
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Floyd Allen Hawkins,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CR-547-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Floyd Allen Hawkins appeals his conviction and 324-month sentence
for production of child pornography, a violation of 18 U.S.C. § 2251(a).
Citing Bond v. United States, 572 U.S. 844 (2014), Hawkins argues that the
factual basis was insufficient to support his guilty plea because § 2251(a)
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 21-10500 Document: 00516100229 Page: 2 Date Filed: 11/18/2021
No. 21-10500
should be construed as requiring the Government to prove that the offense
caused the materials to move in interstate commerce or, at least, that the
materials moved in interstate commerce recently. Hawkins acknowledges
that his argument is foreclosed, additionally contending, citing National
Federation of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012), that Congress’s
power under the Commerce Clause authorizes it only to regulate commercial
activity and that the mere travel of an object through interstate commerce is
not, by itself, a commercial act. The Government has filed an unopposed
motion for summary affirmance, agreeing that Hawkins’s challenge to his
factual basis is foreclosed.
Summary affirmance is appropriate if “the position of one of the
parties is clearly right as a matter of law so that there can be no substantial
question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis,
406 F.2d 1158, 1162 (5th Cir. 1969). The parties are correct that Hawkins’s
challenge to his factual basis is foreclosed. See United States v. Bailey, 924
F.3d 1289, 1290 (5th Cir. 2019); United States v. Dickson, 632 F.3d 186, 192
(5th Cir. 2011); United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000).
Accordingly, the Government’s motion for summary affirmance is
GRANTED, the Government’s alternative motion for an extension of time
to file a brief is DENIED as unnecessary, and the judgment of the district
court is AFFIRMED.
2