United States v. Luker
CourtCourt of Appeals for the Tenth Circuit
Date FiledOctober 23, 2026
Docket26-3065
StatusUnpublished
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Full Opinion
Appellate Case: 26-3065 Document: 13 Date Filed: 10/23/2026 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 23, 2026
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 26-3065
(D.C. Nos. 6:25-CV-01082-EFM and
TIMOTHY D. LUKER, 6:24-CR-10027-EFM-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER
_________________________________
Before BACHARACH, McHUGH, and CARSON, Circuit Judges.
_________________________________
This case involves a conviction after a guilty plea for distributing
child pornography. See 18 U.S.C. § 2252A(a)(2). The defendant,
Mr. Timothy D. Luker, asked the district court for collateral relief through
vacatur of his sentence. See 28 U.S.C. § 2255(a). The district court denied
the request, and Mr. Luker wants to appeal.
To appeal, he needs a certificate of appealability. 28 U.S.C. §
2253(c)(1)(B). The district court declined to grant a certificate, so
Mr. Luker asks us for one. We can grant a certificate only if reasonable
jurists could debate the correctness of the district court’s ruling. See Slack
v. McDaniel, 529 U.S. 473, 478 (2000). In our view, reasonable jurists
couldn’t debate the correctness of the ruling.
Appellate Case: 26-3065 Document: 13 Date Filed: 10/23/2026 Page: 2
Whether to Grant a Certificate of Appealability
Ineffective Assistance of Counsel
Mr. Luker claims ineffective assistance of counsel. For this claim,
Mr. Luker must prove that his legal representation was deficient and
prejudicial. Strickland v. Washington, 466 U.S. 668, 687−89 (1984).
1. Interstate Commerce
Mr. Luker points out that distribution of child pornography is a
federal crime only if the distribution
• involves the use of a “means or facility of interstate commerce”
or
• affects interstate commerce.
18 U.S.C. § 2252A(a)(2)(A). For these requirements, the government
points out that Mr. Luker distributed child pornography through the
internet. Mr. Luker responds that his trial attorney should have argued that
the internet doesn’t involve an instrumentality of interstate commerce. But
“we have decided the Internet is an instrumentality of interstate
commerce.” United States v. Morgan, 748 F.3d 1024, 1033 (10th Cir.
2014); see also Utah Lighthouse Ministry v. Found. for Apologetic Info. &
Research, 527 F.3d 1045, 1046 (10th Cir. 2008) (stating that “the Internet
is generally an instrumentality of interstate commerce”). And Mr. Luker
doesn’t suggest how his trial attorney could have distinguished this
decision.
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Mr. Luker observes that we held in 2025 that automobiles aren’t per
se instrumentalities of interstate commerce for purposes of a federal
kidnapping statute. United States v. Chavarria, 140 F.4th 1257, 1268 (10th
Cir. 2025). Mr. Luker argues that this observation applies equally to the
internet. But our observation about automobiles didn’t exist until Mr.
Luker had already been sentenced. So defense counsel couldn’t have relied
on this observation to contest the element of interstate commerce. See
Spears v. Mullin, 343 F.3d 1215, 1250 (10th Cir. 2003) (holding that
counsel wasn’t ineffective for failing to anticipate an argument that
blossomed from a new case developed after the defendant’s trial). When
Mr. Luker pleaded guilty, we had held that the internet was an
instrumentality of interstate commerce; and no jurist could reasonably fault
defense counsel for failing to conjure a way of distinguishing that holding.
So we deny a certificate of appealability on this ground.
2. Sharing of Images as Distribution
Mr. Luker admits that he shared child pornography, but argues that
he didn’t “distribute” it absent a contribution to the production of any
pornographic images. This argument lacks any support. We’ve defined
distribution of child pornography as the transfer or dispersal to others.
United States v. Shaffer, 472 F.3d 1219, 1223−24 (10th Cir. 2007). Given
our definition of distribution, no jurist could reasonably credit Mr. Luker’s
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argument. So we decline to grant a certificate of appealability on this
ground.
3. Distribution for Profit
Mr. Luker argues that he didn’t try to profit when sharing child
pornography. But the Supreme Court has held that people can “certainly
‘distribute’ child pornography without expecting payment in return.”
United States v. Williams, 553 U.S. 285, 295 (2008). Given that holding,
no jurist could reasonably fault defense counsel for failing to rely on the
absence of a profit motive. We thus decline to grant a certificate of
appealability on this ground.
4. Absence of Harm
Mr. Luker also argues that he didn’t harm any of the children who
were exposed. But the Supreme Court has recognized that distribution of
child pornography harms children by creating a permanent record of their
exposure. Paroline v. United States, 572 U.S. 434, 440 (2014). Given the
Supreme Court’s recognition of harm from the distribution of child
pornography, no reasonable jurist could fault defense counsel for failing to
deny harm from the pornographic images. So we decline to grant a
certificate of appealability on this ground.
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5. Amount of Restitution
The district court ordered Mr. Luker to pay restitution of $5000, 1 and
he challenges the amount. Federal law requires that the restitution amount
be at least $3000, and the amount isn’t subject to mathematical precision.
See 18 U.S.C. § 2259(b)(2)(B) (at least $3000); Paroline, 572 U.S. at 459
(not subject to mathematical precision).
Mr. Luker argues that his trial attorney was ineffective for failing to
challenge the restitution amount. The district court rejected this argument,
and Mr. Luker hasn’t said how he could have successfully challenged the
district court’s estimate of the harm. After all, the statute itself created a
floor of $3000 for restitution and the court could reasonably estimate the
harm to the child at $5000. No jurist could legitimately debate the
reasonableness of that estimate. We thus deny a certificate of appealability
on this ground.
6. Supervised Release
Mr. Luker argues that his trial attorney should have argued that the
term of supervised release had increased the sentence and impeded
rehabilitation. But federal law required supervised release. 18 U.S.C. §
3583(K).
1
Mr. Luker was ordered to pay a total of $15,100: $5,000 in
restitution to one victim, an assessment of $100 to the Crime Victims
Fund, and an assessment of $10,000 to the Amy, Vicky, and Andy Child
Pornography Victim Assistance Act of 2018.
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Mr. Luker might conceivably argue that statutory supervised release
is unconstitutional. But he doesn’t mention the Constitution when
discussing supervised release. 2 And Congress authorized supervised release
to promote rehabilitation by helping offenders transition into their
communities. United States v. Johnson, 529 U.S. 53, 59 (2000). Given
Congress’s determination, we deny a certificate of appealability on this
ground.
7. Registry of Sex Offenders
Mr. Luker also challenges the requirement to register as a sex
offender. But he doesn’t say how he thinks the registry violated the
Constitution. And we have rejected constitutional challenges to the registry
based on the Due Process Clause, the Ex Post Facto Clause, the Commerce
Clause, and the nondelegation doctrine. United States v. Carel, 668 F.3d
1211, 1214 (10th Cir. 2011). Given these decisions, no jurist could
reasonably credit Mr. Luker’s constitutional challenge. So we decline to
grant a certificate of appealability on this ground.
2
Mr. Luker suggests that he has challenged the constitutionality of
supervised release. But he mentions the Constitution only when addressing
the Double Jeopardy Clause, and the Supreme Court has “recognized that
supervised release punishments arise from and are treated as part of the
penalty for the initial offense.” United States v. Haymond, 588 U.S. 634,
648 (2019).
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Constitutionality of Requiring a Certificate of Appealability
Mr. Luker also argues that the constitutional protection of habeas
corpus prevents courts from requiring a certificate of appealability. But the
Constitution doesn’t create a right to appeal the denial of collateral relief.
Abney v. United States, 431 U.S. 651, 656 (1977). So the Constitution
doesn’t prevent Congress from requiring a certificate of appealability
before a federal defendant can appeal the denial of collateral relief.
Disposition
Because Mr. Luker hasn’t shown how reasonable jurists could
reasonably credit any of his arguments, we decline to issue a certificate of
appealability. Absent a certificate, we dismiss the appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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