United States v. White ( 2022 )

Case: 22-10042 Document: 00516534079 Page: 1 Date Filed: 11/04/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 22-10042
Summary Calendar FILED
November 4, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Jason Paul White,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:21-CR-11-1
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Jason Paul White appeals his conviction and 360-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), White argues that the factual basis
was insufficient to support his guilty plea because § 2251(a) should be
*
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opinion should not be published and is not precedent except under the limited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: 22-10042 Document: 00516534079 Page: 2 Date Filed: 11/04/2022
No. 22-10042
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. White acknowledges that his
argument is foreclosed, additionally contending, citing National Federation of
Independent Business 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 White’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 White’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, 226-31 (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