United States v. Riddle

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 30, 2003 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III Clerk

No. 02-30899 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v

GARY K RIDDLE

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Western District of Louisiana USDC No. 02-CR-20028-ALL --------------------

Before KING, Chief Judge, and BARKSDALE and STEWART, Circuit Judges.

PER CURIAM:*

Gary K. Riddle (Riddle) pleaded guilty to production of

child pornography in violation of 18 U.S.C. § 2251(a) and

possession of child pornography in violation of 18 U.S.C.

§ 2252A(a)(5)(B). He appeals, arguing that these statutes are

unconstitutional as applied to his conduct because they exceed

Congress’s power to regulate interstate commerce under the

Commerce Clause. In addition, Riddle states that his

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-30899 -2-

constitutional challenge is foreclosed by our ruling in United

States v. Kallestad, 236 F.3d 225, 231 (5th Cir. 2000), and only

raises the issue to preserve it for future review.

A valid unconditional guilty plea waives all non-

jurisdictional defects in the trial court proceedings against

a defendant, including an as-applied constitutional challenge

to a statute. United States v. Johnson, 194 F.3d 657, 659

(5th Cir. 1999), vacated on other grounds and remanded, 530 U.S.

1201 (2000), opinion reinstated with modification, 246 F.3d 749

(5th Cir. 2001). Riddle’s challenge to the interstate commerce

aspect of the statutes at issue does not raise a jurisdictional

issue. See id. (finding that interstate commerce requirement of

arson statute, 18 U.S.C. § 844(i), was “not a prerequisite to

subject matter jurisdiction.”); United States v. Robinson,

119 F.3d 1205, 1212 n.4 (5th Cir. 1997) (finding that interstate

commerce element of Hobbs Act, 18 U.S.C. § 1951, was not

jurisdictional). Accordingly, by entering into an unconditional

guilty plea agreement, Riddle has waived his as-applied

constitutional challenge to 18 U.S.C. §§ 2251(a) and

2252A(a)(5)(B). See Johnson, 194 F.3d at 659.

Accordingly, the judgment of the district court is hereby

AFFIRMED.