     Case: 10-10031     Document: 00511239978          Page: 1    Date Filed: 09/21/2010




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

                                                 FILED
                                                                        September 21, 2010
                                     No. 10-10031
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

RONNIE GRACE,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 3:03-CR-248-5


Before SMITH, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Ronnie Grace had his supervised release revoked following his convictions
for three conspiracy offenses: conspiracy to commit bank fraud, social security
number fraud, and fraudulent use of identification documents. He appeals,
arguing that the district court erred in holding that false statements in his
monthly supervision reports constituted violations of 18 U.S.C. § 1001(a) and
Grade B violations of his supervised release.                 He asserts that his false



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 10-10031    Document: 00511239978 Page: 2        Date Filed: 09/21/2010
                                 No. 10-10031

statements fell within the judicial proceeding exception in Section 1001(b), for
statements made by a party to a judge in a judicial proceeding.
       Grace did not raise this argument in the district court. Therefore, our
review is limited to plain error. See United States v. Davis, 602 F.3d 643, 647
n.5 (5th Cir. 2010). To establish plain error, he must show a forfeited error that
is clear or obvious and that affected his substantial rights. See Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). He must show that the error was clear
under current law in place at the time of trial. United States v. Jackson, 549
F.3d 963, 977 (5th Cir. 2008). An error is not plain under “current law” “if a
defendant’s theory requires the extension of precedent.” Id. (internal citations
omitted). If the appellant makes such a showing, this court has the discretion
to correct the error if it seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Puckett, 129 S. Ct. at 1429.
       Grace has not shown that the district court plainly erred in holding that
his false statements constituted a violation of Section 1001(a) and a Grade B
violation of his supervised release. This court has not addressed in a published
opinion the applicability of the judicial proceeding exception in Section 1001(b)
to such statements. Two circuits have reached opposite conclusions. Compare
United States v. Horvath, 492 F.3d 1075, 1080-82 (9th Cir. 2007), with United
States v. Manning, 526 F.3d 611, 613-21 (10th Cir. 2008). Given the absence of
binding precedent and the disagreement elsewhere in the circuit courts, any
error by the district court was not clear and obvious. See Jackson, 549 F.3d at
977.   Therefore, Grace has not shown that any error by the district court
constituted plain error. See Puckett, 129 S. Ct. at 1429.
       AFFIRMED.




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