United States v. Marcos Gamez
670 F. App'x 218
| 5th Cir. | 2016Background
- Marcos Antonio Gamez pleaded guilty to: (1) production of child pornography (18 U.S.C. § 2251(a)) and aiding and abetting, and (2) enticement of a minor via interstate or foreign commerce (18 U.S.C. § 2422(b)) and aiding and abetting.
- In the plea colloquy Gamez admitted producing a visual depiction using materials that had been mailed, shipped, or transported in interstate commerce, and admitted using a facility or means of interstate commerce to entice a minor.
- Gamez later contended the factual basis was insufficient under Federal Rule of Criminal Procedure 11 because he did not expressly admit that the materials actually moved interstate in the recent past (for § 2251(a)) or that the media transmitted information across state lines in connection with the enticement (for § 2422(b)).
- He relied on Bond v. United States to argue that, without such a showing, the federal convictions intrude on state police powers.
- The district court found the plea facts adequate; the Fifth Circuit reviewed Gamez’s forfeited objection for plain error and affirmed, relying on existing Fifth Circuit precedents upholding federal jurisdiction where materials used in production moved in interstate commerce and treating the internet as interstate commerce for § 2422(b).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of factual basis for § 2251(a) production count | Gamez: plea lacked an admission that the materials moved interstate in the recent past as § 2251(a) requires | Government/District Court: admitted use of materials that had been mailed/shipped/transported in interstate commerce is sufficient | Affirmed — no clear or obvious Rule 11 error under Fifth Circuit precedent |
| Sufficiency of factual basis for § 2422(b) enticement count | Gamez: plea did not admit that his media transmission moved information across state lines related to the offense | Government/District Court: use of a facility/means of interstate commerce (e.g., internet) suffices | Affirmed — internet is a means/facility of interstate commerce; factual basis adequate |
| Bond-related commerce clause challenge | Gamez: Bond requires closer limits on federal reach to avoid intruding on state police power | Government: Bond did not abrogate Fifth Circuit precedents authorizing federal prosecution here | Affirmed — Bond does not overrule controlling circuit precedent; issues preserved for further review |
| Challenge to circuit precedent and standard of review | Gamez: Kallestad/Barlow wrongly decided; plain error review inappropriate for forfeited plea-basis objection | Government: Circuit precedent controls; plain error applies to forfeited claim | Affirmed — panel bound by prior Fifth Circuit decisions; plain error review applied and failed |
Key Cases Cited
- Bond v. United States, 134 S. Ct. 2077 (2014) (held limits on federal intrusion into traditional state police powers are relevant to statutory construction challenges)
- United States v. Trejo, 610 F.3d 308 (5th Cir. 2010) (Rule 11 requires factual basis sufficient as a matter of law for the charged offense)
- Puckett v. United States, 556 U.S. 129 (2009) (standard for plain error review)
- United States v. Dickson, 632 F.3d 186 (5th Cir. 2011) (Commerce Clause supports federal prohibition of local production when materials used moved in interstate commerce)
- United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000) (upholding federal jurisdiction where materials used in child-pornography production traveled in interstate commerce)
- United States v. Barlow, 568 F.3d 215 (5th Cir. 2009) (internet is a means or facility of interstate commerce under § 2422(b))
- United States v. Lipscomb, 299 F.3d 303 (5th Cir. 2002) (one panel cannot overrule prior circuit precedent)