Summary
finding that the surreptitious recording of a minor showering depicted sexually explicit conduct
Summary of this case from United States v. RomeroOpinion
No. 08-30689 Summary Calendar.
May 14, 2009.
Catherine Maraist, Corey Ross Amundson, U.S. Attorney's Office, Middle District of Louisiana, Baton Rouge, LA, for Plaintiff-Appellee.
Rebecca L. Hudsmith, Federal Public Defender, Federal Public Defender's Office, Western District of Louisiana, Lafayette, LA, for Defendant-Appellant.
Appeal from the United States District Court for the Middle District of Louisiana, No. 3:07-CR-150-1.
Before HIGGINBOTHAM, BARKSDALE, and ELROD, Circuit Judges.
Alan D. Bevers appeals his conditional guilty plea conviction to 18 U.S.C. § 2251(a), sexual exploitation of a child. He argues that the factual basis of his plea did not establish that the victim engaged in "sexually explicit conduct" because the videotape in question did not depict a lascivious exhibition of the minor's genitals or pubic area. We review the district court's factual finding for clear error.
See U.S. v. Reasor, 418 F.3d 466, 474 (5th Cir. 2005); U.S. v. Boudreau, 250 F.3d 279, 283 (5th Cir. 2001).
Using the " Dost factors" adopted by this court to determine whether a visual depiction of a minor constitutes a "lascivious exhibition of the genitals or pubic area," the district court pointed to several pertinent facts: that the videotape focused on the fully nude genitalia of a female child taking a shower; captured the child's buttocks and breast; and was taped with the purpose of eliciting a sexual response from the viewer.
U.S. v. Grimes, 244 F.3d 375, 381 (5th Cir. 2001); see U.S. v. Dost, 636 F.Supp. 828 (S.D.Cal. 1986).
We cannot say that the district court's finding that the depiction at issue constituted a lascivious exhibition of the genitals or pubic area of the victim is clear error. The sexually explicit conduct element of § 2251(a) was met, and the factual basis is sufficient to support Bevers's plea.
See FED.R.CRIM.P. 11(b)(3).
AFFIRMED.