     Case: 09-30249     Document: 00511013601          Page: 1    Date Filed: 01/27/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          January 27, 2010
                                     No. 09-30249
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

HARRY TEMPLE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:07-CR-422-1


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Harry Temple challenges his guilty plea for three counts of access device
fraud, in violation of 18 U.S.C § 1029(a)(3), (a)(4), (a)(8), and one count of
aggravated identity theft, in violation of 18 U.S.C. § 1028A(c)(4).                  Temple
attached parasitic skimming devices 1 to two automated teller machines (ATMs)
in Metairie, Louisiana. He used these devices to capture at least one person’s


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
        1
       A parasitic skimming device is an electronic device that captures credit card account
numbers.
   Case: 09-30249     Document: 00511013601 Page: 2         Date Filed: 01/27/2010
                                  No. 09-30249

credit card number, a Nevada resident, which Temple used to purchase
merchandise at a Home Depot located in Covington, Louisiana.
      Temple argues that the factual basis to which he pleaded guilty was
insufficient to prove that his crimes affected interstate commerce. Temple
reasons that the factual basis does not contain information that his victim lives
outside of Louisiana, that the credit card was issued by an out-of-state bank, or
that any payment crossed state lines.
      Because Temple raises this issue for the first time on appeal, it is reviewed
for plain error. United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001). To
demonstrate plain error, Temple must show “(1) there is an error, (2) that is
clear and obvious, and (3) that affects his substantial rights.” Id. “If these
factors are established, the decision to correct the forfeited error still lies within
[the court’s] sound discretion, which [it] will not exercise unless the error
seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
      Regardless of whether the factual basis was sufficient to show that
Temple’s crimes affected interstate commerce, Temple cannot demonstrate plain
error because he has failed to allege that any error “affected the outcome of the
district court proceedings.” United States v. Fernandez, 559 F.3d 303, 316 (5th
Cir. 2009), cert. denied, 2009 WL 1615546 (Oct. 5, 2009) (No. 08-1517). That is,
in his opening brief, Temple nowhere argues that he would not have pleaded
guilty, but for the district court’s determination that the factual basis was
sufficient. Additionally, Temple’s allegation, raised for the first time in his reply
brief, that he “would not have pled guilty to a crime he did not commit” should
not be considered and is nevertheless unsupported by the record. See United
States v. Fields, 483 F.3d 313, 352 n.36 (5th Cir. 2007). Accordingly, Temple
fails to show that the purported error affected his substantial rights, and he
therefore fails to show plain error. Fernandez, 559 F.3d at 316. AFFIRMED.



                                          2
  Case: 09-30249   Document: 00511013601 Page: 3      Date Filed: 01/27/2010
                               No. 09-30249

     Finally, the Government filed a motion to dismiss Temple’s appeal based
on the appeal waiver and the fact that Temple cannot demonstrate plain error.
In light of the foregoing, that motion is denied as moot. DENIED.




                                     3
