United States v. Larry Caillier, II

Case: 11-30099 Document: 00511613310 Page: 1 Date Filed: 09/26/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
September 26, 2011
No. 11-30099
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
LARRY CAILLIER, II,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:10-CR-76-1
Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
Larry Caillier, II, appeals from his guilty plea conviction for receiving child
pornography, in violation of 18 U.S.C. § 2252A(a)(1)(A). The district court
sentenced Caillier to 168 months of imprisonment, 15 years of supervised
release, and registration as a sex offender. He argues on appeal that none of the
four images he received on his cellular phone constituted child pornography and
that he therefore pleaded guilty to a crime that was never committed. Because
he has raised this argument for the first time on appeal, we review the issue only
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-30099 Document: 00511613310 Page: 2 Date Filed: 09/26/2011
No. 11-30099
for plain error. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429
(2009); United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc).
Caillier specifically asserts that the sole photograph showing the victim’s
genitals or pubic area does not qualify as the “lascivious exhibition of the
genitals or pubic area of any person” for purposes of 18 U.S.C. § 2256(2)(A)(v)
because the victim’s genitals or pubic area is covered by clothing in the
photograph, the focal point of the photograph is not the victim’s genitals or pubic
area, and the other aspects of the depiction in the photograph do not meet the
relevant Dost1 factors. See United States v. Steen, 634 F.3d 822, 826-27 (5th Cir.
2011) (analyzing Dost factors to determine whether depictions meet definition
of lascivious exhibition of the genitals or pubic area). After examination of the
evidence and analysis of the Dost factors, we conclude that Caillier has failed to
show clear or obvious error as to this issue. See Puckett, 129 S. Ct. at 1429.
The district court’s judgment is AFFIRMED.
1
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
2