United States v. Rapier

* 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opinion should not be published and is not precedent except under the limited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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20514
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONALD DEE RAPIER, also known as Donald D. Rapier,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-00-CR-76-ALL
--------------------
March 17, 2003
ON REMAND FROM THE SUPREME COURT
OF THE UNITED STATES
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Donald Rapier was convicted, following guilty pleas, of one
count of foreign or interstate transportation of child pornography

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and one count of possession of child pornography. This court af-
firmed. See United States v. Rapier, No. 00-20514 (Jan. 24, 2002)
(unpublished), vacated, 123 S. Ct. 69 (2002). The Supreme Court
vacated and remanded for reconsideration in light of Ashcroft
v. Free Speech Coalition, 535 U.S. 234 (2002).
Following remand, the parties were directed to address the
effect, if any, of Free Speech Coalition and whether the matter
should be remanded to the district court for further proceedings.
We do not regard the Supreme Court’s remand for reconsideration as
invalidating the conviction and sentence. See United States v.
Slanina, 313 F.3d 891, 892 (5th Cir. 2002). Because Free Speech
Coalition does not affect the viability of Rapier’s guilty plea, we
AFFIRM for the reasons expressed in our original opinion, with the
following additional explanation:
In Free Speech Coalition, 535 U.S. at 254-58, the Court
determined that, because the provisions of 18 U.S.C. § 2256(8)(B)
and (D), which define “child pornography,” extend to visual depic-
tions that do not involve actual minors, and thus prohibit the
freedom to engage in a substantial amount of lawful speech, they
are overbroad and unconstitutional. The Court noted that the defi-
nition found in § 2256(8)(A) prohibits pornographic images made us-
ing actual minors, a prohibition acceptable under United States v.
Ferber, 458 U.S. 747 (1982). See Free Speech Coalition, 535 U.S.
at 241.
At Rapier’s rearraignment, the district court employed only
the definition provided by § 2256(8)(A). This provision was unaf-
fected by the decision in Free Speech Coalition, and it remains

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viable. See United States v. Paul, 274 F.3d 155, 160-61 (5th Cir.
2001), cert. denied, 535 U.S. 1022 (2002); United States v. Reedy,
304 F.3d 358, 364 n.3 (5th Cir. 2002); United States v. Kelly, 314
F.3d 908, 911-913 (7th Cir. 2003). Because Rapier pleaded guilty
to offenses involving visual depictions of actual minors, Free
Speech Coalition does not affect the validity of his convictions.
Although Rapier’s indictment also contained the definitions struck
down by Free Speech Coalition, these definitions were independent
of, and unnecessary to, the offenses of which he pleaded guilty and
thus are not fatal to his convictions. See United States v. Nunez,
180 F.3d 227, 233 (5th Cir. 1999).
The issues raised by Rapier on direct appeal are unaffected by
Free Speech Coalition. The judgment is AFFIRMED.

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