United States v. Peebles

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20872
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM KENNETH PEEBLES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-3-1
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October 16, 2001
Before JOLLY, HIGGINBOTHAM and PARKER, Circuit Judges.
PER CURIAM:*
William Kenneth Peebles appeals his conditional guilty-plea
conviction and sentence for possession of child pornography.
In accordance with the reservation of rights in his plea
agreement, Peebles contends that the definition of “child
pornography” in the Child Pornography Protection Act (CPPA) is
unconstitutionally overbroad and vague because it includes any
visual depiction that “appears to be, of a minor engaging in
sexually explicit conduct.” 18 U.S.C. § 2256(8)(B) (emphasis
*
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that this opinion should not be published and is not precedent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.
No. 00-20872
-2-
added). Peebles concedes that this argument is foreclosed by
United States v. Fox, 248 F.3d 394, 403-07 (5th Cir. 2001), which
held the definition not to be overbroad or vague. Peebles raises
the issue only to preserve it for possible Supreme Court review.
Peebles contends there is no factual basis for his plea
because the record does not establish that the pornographic
images were “transported in interstate or foreign commerce.” See
18 U.S.C. § 2252A(a)(2). The factual basis written into the plea
agreement and established at the plea hearing showed that Peebles
downloaded the images onto a computer and through a network
server that transmitted the images across state lines. The
district court complied with Rule 11(f) by “making such inquiry
as [satisfied] it that there is a factual basis for the plea.”
Fed. R. Crim. P. 11(f).
Peebles challenges the special condition of supervised
release that requires him to register as a sex offender in
accordance with state law. Peebles validly waived any appeal of
his sentence except for an upward departure from the guidelines.
See Fed. R. Crim. P. 11(c)(6); see United States v. Robinson, 187
F.3d 516, 518 (5th Cir. 1999). The district court was required
by 18 U.S.C. § 3583(d) to make sex-offender registration a
condition of Peebles’s supervised release. Therefore the
requirement was not an “upward departure,” and Peebles therefore
waived his right to appeal it.
The conviction and sentence are AFFIRMED.