United States v. Barrios

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 15, 2025
• Docket: 24-20262
• Status: Unpublished

Opinion

Case: 24-20262 Document: 70-1 Page: 1 Date Filed: 05/15/2025

United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit

No. 24-20262 FILED Summary Calendar May 15, 2025 ____________ Lyle W. Cayce Clerk United States of America,

Plaintiff—Appellee,

versus

Oscar Barrios,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Southern District of Texas USDC No. 4:22-CR-565-1 ______________________________

Before Higginbotham, Jones, and Oldham, Circuit Judges. Per Curiam: * Oscar Barrios pleaded guilty to three counts of distribution, receipt, and possession of child pornography. He now appeals his convictions and sentences on the receipt and possession counts, arguing for the first time that his convictions and sentences for both possession of child pornography and receipt of child pornography violate the Double Jeopardy Clause of the Fifth

_____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-20262 Document: 70-1 Page: 2 Date Filed: 05/15/2025

No. 24-20262

Amendment. Because Barrios did not object to the indictment in the district court, “we review only the validity of his sentences, not his convictions.” United States v. Barton, 879 F.3d 595, 599 (5th Cir. 2018). Reviewing the unpreserved argument for plain error in light of the record as a whole, Barrios cannot show the district court committed clear or obvious error due to the lack of binding authority as to the issue whether possession of child pornography is a lesser-included offense of receipt of child pornography. See United States v. Evans, 587 F.3d 667, 671 (5th Cir. 2009); United States v. Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Accordingly, the judgment of the district court is AFFIRMED.