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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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