Fifth Circuit Affirms CP Pleas

Virgil Bailey appealed his convictions of production of child pornography under 18 U.S.C. 2251(a) and possession of child pornography under 18 U.S.C. 2252(a)(4), as well as his 40-year sentence.

He asserted that the factual basis supporting his pleas of guilty were insufficient under Federal Rule of Criminal Procedure 11 because he didn’t admit that the offenses caused materials to move in interstate commerce. Relying on the Supreme Court’s decision in Bond v. United States, 572 U.S. 844 (2014), he contended that a conviction in the absence of such proof impermissibly intrudes on the police power of the State.

The Fifth Circuit had held in the past that the Commerce Clause authorizes Congress to prohibit local, intrastate production of child pornography where the materials used in the production were moved in interstate commerce. See United States v. Dickson, 632 F.3d 186, 189–90 (5th Cir. 2011). The Fifth Circuit affirmed Bailey’s convictions, holding that Bond did not abrogate its prior holdings and that Bailey had failed to show error in the district court’s decision that there was indeed a sufficient factual basis for his pleas in light of this caselaw.