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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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