USA v. White, No. 22-10042 (5th Cir. 2022)
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Case: 22-10042 Document: 00516534079 Page: 1 Date Filed: 11/04/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit No. 22-10042 Summary Calendar FILED November 4, 2022 Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Jason Paul White, Defendant—Appellant. Appeal from the United States District Court for the Northern District of Texas USDC No. 5:21-CR-11-1 Before Higginbotham, Graves, and Ho, Circuit Judges. Per Curiam:* Jason Paul White appeals his conviction and 360-month sentence for production of child pornography, a violation of 18 U.S.C. § 2251(a). Citing Bond v. United States, 572 U.S. 844 (2014), White argues that the factual basis was insufficient to support his guilty plea because § 2251(a) should be * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4.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: 22-10042 Document: 00516534079 Page: 2 Date Filed: 11/04/2022 No. 22-10042 construed as requiring the Government to prove that the offense caused the materials to move in interstate commerce or, at least, that the materials moved in interstate commerce recently. White acknowledges that his argument is foreclosed, additionally contending, citing National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), that Congress’s power under the Commerce Clause authorizes it only to regulate commercial activity and that the mere travel of an object through interstate commerce is not, by itself, a commercial act. The Government has filed an unopposed motion for summary affirmance, agreeing that White’s challenge to his factual basis is foreclosed. Summary affirmance is appropriate if “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969). The parties are correct that White’s challenge to his factual basis is foreclosed. See United States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019); United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011); United States v. Kallestad, 236 F.3d 225, 226-31 (5th Cir. 2000). Accordingly, the Government’s motion for summary affirmance is GRANTED, the Government’s alternative motion for an extension of time to file a brief is DENIED as unnecessary, and the judgment of the district court is AFFIRMED. 2
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