United States v. David Looney

Opinion

Case: 18-10060 Document: 00514641727 Page: 1 Date Filed: 09/14/2018

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 18-10060 United States Court of Appeals

Summary Calendar

Fifth Circuit

FILED

September 14, 2018

UNITED STATES OF AMERICA, Lyle W. Cayce Clerk

Plaintiff-Appellee

v.

DAVID NEAL LOONEY,

Defendant-Appellant

Appeal from the United States District Court for the Northern District of Texas USDC No. 4:06-CR-108-1

Before DAVIS, HAYNES, and GRAVES, Circuit Judges. PER CURIAM: * David Neal Looney appeals the 10-month sentence imposed on revocation of supervised release. His violation of supervised-release conditions was deemed Grade B, which is defined in relevant part as conduct that would constitute a crime punishable by more than a year in prison. He argues that there was no showing that he possessed images depicting minors engaged in

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

Case: 18-10060 Document: 00514641727 Page: 2 Date Filed: 09/14/2018

No. 18-10060

sexually explicit conduct as required to constitute the federal felony of possession of child pornography.

We review only for plain error because Looney did not object in the district to the finding of a Grade B violation. See United States v. Davis, 602 F.3d 643, 646-47 (5th Cir. 2010). To establish plain error, Looney must first show at least a forfeited error that is clear or obvious. See id.

Regardless of whether Looney’s claim is foreclosed under United States v. Claiborne, 676 F.3d 434, 438 (5th Cir. 2012), and United States v. Lopez, 923 F.2d 47, 50 (5th Cir. 1991), the claim fails because there is no plain error. Looney admitted relapsing into “his old behaviors,” which had resulted in his underlying conviction for possession of child pornography, and he admitted accessing pornography depicting underage children. Any failure by the district court to sua sponte notice the allegedly non-criminal nature of the images was not a “clear and obvious error.” See Davis, 602 F.3d at 646-67; Lopez, 923 F.2d at 50.

The judgment is AFFIRMED.