United States v. David Looney ( 2018 )

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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