Zimmerman

MEMORANDUM ***

Wayne Jay Zimmerman appeals his conviction for possession of child pornography in violation of 18 U.S.C. § 2252 (a)(4)(B). The government specifically declined to seek Zimmerman’s conviction under 18 U.S.C. § 2252 (a)(4)(B)’s first “jurisdictional hook” requiring that the child pornography be shipped or transported in interstate or foreign commerce and proceeded solely under the second “jurisdictional hook” that the images were produced using materials shipped or transported in interstate or foreign commerce. This second “jurisdictional hook” is “useless” as a basis for federal jurisdiction, however, because “virtually all criminal actions in the United States involve the use of some object that has passed through interstate commerce.” United States v. McCoy, 323 F.3d 1114, 1126 (9th Cir.2003) (internal quotation marks omitted). Thus we assume for purposes of this appeal that Zimmerman did not possess child pornography transmitted across state borders, and we can reject his as applied challenge to § 2252(a)(4)(B) only if we conclude that his possession of child pornography had “a substantial effect on interstate commerce.” See Gonzales v. Raich, 545 U.S. 1 , 125…