United States v. Jake Luera ( 2019 )

Case: 18-20262 Document: 00514972626 Page: 1 Date Filed: 05/28/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-20262 FILED
Summary Calendar May 28, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAKE NICHOLAS LUERA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:16-CR-311-1
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM: *
Jake Nicholas Luera appeals his 136-month sentence of imprisonment
for receipt of child pornography and his 120-month sentence for possession of
child pornography. Luera argues that these sentences violate the Double
Jeopardy Clause of the Fifth Amendment. He also contends that his advisory
guidelines range was incorrectly calculated. According to Luera, the district
court should have reduced his offense level by two because his conduct was
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-20262 Document: 00514972626 Page: 2 Date Filed: 05/28/2019
No. 18-20262
limited to receipt of child pornography, U.S.S.G. § 2G2.2(b)(1), and the district
court should not have applied the two-level enhancement for use of a computer
during commission of the offense, §2G2.2(b)(6).
Luera failed to preserve his first two arguments. For this reason, both
fail. We do not ordinarily find plain error if an issue has not been addressed
by a controlling circuit or Supreme Court precedent. E.g., United States v.
Evans, 587 F.3d 667, 671 (5th Cir. 2009). And “[i]n this circuit . . . questions
of fact capable of resolution by the district court can never constitute plain
error.” United States v. Illies, 805 F.3d 607, 609 (5th Cir. 2015) (internal
quotation and citation omitted).
Luera’s final argument fares no better. In United States v. Miller, 665
F.3d 114, 121 (5th Cir. 2011), we rejected a policy-based challenge to the child
pornography guidelines. Similarly here, in an Eighth Amendment challenge,
we do not substitute our judgment for that of Congress or the U.S. Sentencing
Commission. See United States v. Harris, 566 F.3d 422, 435-36 (5th Cir. 2009).
Luera has also not shown that the use of a computer enhancement has no
rational basis or is applied on an arbitrary basis in violation of his due process
rights. See United States v. Bacon, 646 F.3d 218, 221-22 (5th Cir. 2011).
AFFIRMED.
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