Document Info

DocketNumber: 21-40638

Filed Date: 3/15/2022

Status: Non-Precedential

Modified Date: 3/16/2022

  • Case: 21-40638     Document: 00516239848         Page: 1     Date Filed: 03/15/2022
    United States Court of Appeals
    for the Fifth Circuit                             United States Court of Appeals
    Fifth Circuit
    FILED
    March 15, 2022
    No. 21-40638                         Lyle W. Cayce
    Summary Calendar                            Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Robert Andrew Riley,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 1:18-CR-296-1
    Before Higginbotham, Higginson, and Duncan, Circuit Judges.
    Per Curiam:*
    Robert Andrew Riley appeals his convictions for receipt of child
    pornography, in violation of 18 U.S.C. § 2252A(a)(2)(B), (b)(1), and
    possession of child pornography, in violation of § 2252A(a)(5)(B), (b)(2). He
    argues the district court erred by failing to declare unconstitutional the
    *
    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    opinion should not be published and is not precedent except under the limited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: 21-40638     Document: 00516239848           Page: 2   Date Filed: 03/15/2022
    No. 21-40638
    statute under which he was convicted because (1) child pornography is not
    one of the federal crimes listed in the Constitution and (2) federal
    prosecution for conduct related to child pornography is beyond the scope of
    the Commerce Clause. Because Riley did not present the foregoing issues to
    the district court, our review is limited to plain error. See United States v.
    Howard, 
    766 F.3d 414
    , 419 (5th Cir. 2014); see also Puckett v. United States,
    
    556 U.S. 129
    , 135 (2009).
    Riley has not shown any clear or obvious error with respect to the
    constitutionality of § 2252A(a). Here, United States v. Comstock, 
    560 U.S. 126
    , 135-36 (2010), disposes of his first argument. Riley’s second argument
    is foreclosed by United States v. Kallestad, 
    236 F.3d 225
    , 226-31 (5th Cir.
    2000). Although Riley asserts that this court should reconsider Kallestad,
    one panel of this court may not overrule the decision of another absent a
    superseding en banc or Supreme Court decision. See United States v.
    Lipscomb, 
    299 F.3d 303
    , 313 & n.34 (5th Cir. 2002).
    The judgment of the district court is AFFIRMED.
    2