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United States v. Wright ( 2023 )


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  • Case: 22-11199         Document: 00516854623             Page: 1      Date Filed: 08/11/2023
United States Court of Appeals
for the Fifth Circuit
____________                              United States Court of Appeals
Fifth Circuit
FILED
No. 22-11199                              August 11, 2023
Summary Calendar
Lyle W. Cayce
____________
Clerk
United States of America,
Plaintiff—Appellee,
versus
Brandon Keith Wright,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CR-635-1
______________________________
Before Higginbotham, Stewart, and Southwick, Circuit
Judges.
Per Curiam: *
Brandon Keith Wright appeals his conviction for production of child
pornography in violation of
    18 U.S.C. § 2251
    (a). Relying on the Supreme
Court’s decision in Bond v. United States,
    572 U.S. 844
     (2014), he challenges
the sufficiency of the factual basis for his conviction and argues that the
district court erred by accepting a guilty plea based on a factual basis that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-11199      Document: 00516854623          Page: 2   Date Filed: 08/11/2023
No. 22-11199
failed to admit an offense. The Government contends that Wright is
precluded from raising his claim by the appeal waiver in his plea agreement.
It argues that, while Wright frames his argument as a challenge to the factual
basis, it is really a challenge to the constitutionality of § 2251(a), which he
waived in his plea agreement. We pretermit consideration of the applicability
of the appeal waiver and reach the merits. See United States v. De Leon,
    915 F.3d 386
    , 389 n.2 (5th Cir. 2019). Even if Wright did not waive his
arguments, they do not survive plain-error review.
It is well-settled that the Commerce Clause authorizes Congress to
prohibit local, intrastate production of child pornography where the materials
used in the production had been moved in interstate commerce. See United
States v. McCall,
    833 F.3d 560
    , 564-65 (5th Cir. 2016); United States v.
Dickson,
    632 F.3d 186
    , 189-90 (5th Cir. 2011); United States v. Kallestad,
    236 F.3d 225
    , 226-31 (5th Cir. 2000). Wright concedes that the cell phone used
in his crime moved in interstate or foreign commerce and that his argument
on this point is foreclosed by current law. See McCall,
    833 F.3d at 564-65
    .
This court has also previously rejected Wright’s alternative argument,
based on National Federation of Independent Business v. Sebelius,
    567 U.S. 519
    (2012), that the Commerce Clause authorizes Congress to regulate only
commercial activity and not activity that is tenuously related to interstate
commerce. See United States v. Alcantar,
    733 F.3d 143
    , 146 (5th Cir. 2013).
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.”
    Id.
    Accordingly, the Government’s motion to dismiss the appeal is
DENIED and the district court’s judgment is AFFIRMED.
2