Case: 11-51266     Document: 00512037768         Page: 1     Date Filed: 10/30/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 30, 2012
                                     No. 11-51266
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

TIMOTHY MCKEITHAN,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:11-CR-258-1


Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
        Timothy McKeithan pleaded guilty to knowing possession of one or more
computer files containing visual depictions of minors engaging in sexually
explicit conduct, in violation of 18 U.S.C. § 2252(a)(4), and was sentenced to a
within-Guidelines       statutory     maximum        120-month       imprisonment-term.
McKeithan contends the district court erred in finding his guilty plea was
supported by an adequate factual basis for the interstate-commerce element of
the offense.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-51266    Document: 00512037768      Page: 2   Date Filed: 10/30/2012

                                  No. 11-51266

      This question is raised for the first time on appeal; thus, review is only for
plain error. E.g., United States v. Garcia-Paulin, 

, 131 (5th Cir.
2010). For reversible plain error, McKeithan must show a clear or obvious error
that affects his substantial rights. Puckett v. United States, 

, 135
(2009). He fails to do so.
      In accepting a guilty plea, the district court must ensure “the factual
conduct admitted by the defendant is sufficient as a matter of law to establish
a violation of the statute to which he entered his plea”. United States v. Trejo,

, 313 (5th Cir. 2010) (emphasis in original); see FED . R. CRIM. P.
11(b)(3). The factual basis must be “sufficiently specific to enable the district
court to compare the conduct admitted by the defendant with the elements of the
offense charged”. Trejo, 610 F.3d at 313. In reviewing the factual sufficiency of
the guilty plea under plain-error review, our court may look beyond the facts
admitted during the plea colloquy “and scan the entire record for facts
supporting his conviction”. Id. “This includes the facts gleaned from the plea
agreement and plea colloquy, [and] the factual findings relied upon in the
presentence report . . . , as well as fairly drawn inferences from the evidence
presented both post-plea and at the sentencing hearing. The indictment, if
specific, is also fair game.” Id. at 317 (internal quotation marks and citations
omitted).
      Our court has held “‘[t]ransmission of photographs by means of the
Internet is tantamount to moving photographs across state lines and thus
constitutes transportation in interstate commerce’”. United States v. Runyan,

, 239 (5th Cir. 2002) (quoting United States v. Carroll, 

,
742 (1st Cir. 1997)). Although a specific connection between the Internet and
the images is necessary to satisfy the interstate-commerce requirement,
circumstantial evidence of such a connection will suffice. Id. at 242.
      Review of the record confirms ample factual support for the district court’s
finding McKeithan possessed images depicting minors engaged in sexually

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                                 No. 11-51266

explicit conduct that were transported in interstate commerce through use of the
Internet. E.g., Trejo, 610 F.3d at 317.
      AFFIRMED.




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