     Case: 14-10203         Document: 00512996587          Page: 1     Date Filed: 04/07/2015




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                         No. 14-10203                        United States Court of Appeals
                                                                                      Fifth Circuit

                                                                                    FILED
UNITED STATES OF AMERICA,                                                        April 7, 2015
                                                                               Lyle W. Cayce
                 Plaintiff - Appellee                                               Clerk

v.

DWIGHT L. LOONEY,

                 Defendant - Appellant



                      Appeal from the United States District Court
                           for the Northern District of Texas
                                USDC No. 4:13-CR-159-1


Before DAVIS and CLEMENT, Circuit Judges, and ROSENTHAL, District
Judge. *
PER CURIAM:**
       Appellant, Dwight L. Looney, appeals his conviction and sentence,
following his guilty plea, challenging the sufficiency of the factual resume
supporting his plea and the district court’s application of the sentencing
guidelines.       For the following reasons, we affirm Looney’s conviction and
sentence.


       *   District Judge of the Southern District of Texas, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                       I. FACTS AND PROCEEDINGS
      Looney pleaded guilty, without a plea agreement, to producing child
pornography “using materials that had been mailed, shipped, and transported
in and affecting interstate and foreign commerce” in violation of 18 U.S.C. §
2251(a). In Looney’s signed factual resume, he admits that he used a camera
manufactured outside the State of Texas — the location of the offense — to
photograph a minor female in a sexually explicit pose. Looney has also been
charged in state court for an offense stemming from the same relevant conduct.
He has not been convicted or sentenced in state court, but has been in the
state’s custody awaiting disposition of his case. The district court sentenced
Looney to 262 months of imprisonment “to run concurrently with any state
sentence imposed in the state court action growing out of this same conduct.”
      At the sentencing hearing, Looney requested that the district court give
him credit for the time he has served in state pretrial custody. The district
court denied Looney’s request because Looney had not been convicted or
sentenced on the state charges, and the United States Sentencing Guidelines
did not require the court to credit Looney the time he served in state pretrial
custody.
      Three months after pleading guilty Looney moved to dismiss his
indictment, arguing that the statute, 18 U.S.C. § 2251(a), is unconstitutional
facially and as applied to him. Looney conceded, however, that this Circuit’s
precedent forecloses this issue, and he made the argument to preserve it for
further review.
      On appeal, Looney challenges the sufficiency of the factual resume
supporting his guilty plea and the district court’s refusal to credit him for the
time he served in state pretrial custody. First, Looney argues that 18 U.S.C. §
2251(a) must be read to reach only commercial production of child
pornography.      It is not enough, he argues, that the camera he used was
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manufactured outside of Texas. Second, Looney argues that the district court
ignored the commentary to the Sentencing Guidelines, which allows a court to
credit a defendant for time served in state pretrial custody.
                                     II. DISCUSSION
A. Sufficiency of the Factual Resume
      Looney shifts his argument from the purely constitutional claims raised
before the district court and asserts, instead, that the factual resume to which
he stipulated was not sufficient to support his conviction.
      Looney pleaded guilty to violating 18 U.S.C. § 2251(a), which makes it a
violation, inter alia, to produce a visual depiction of a minor engaged in
sexually explicit conduct. 1 Under the statute, federal jurisdiction is invoked if
the depiction is “produced . . . using materials that have been mailed, shipped,
or transported in or affecting interstate or foreign commerce by any means.” 2
Looney argues that this requires a “meaningful connection to interstate
commerce.” To satisfy this requirement, he argues that the government must
show (1) that the defendant procured the materials for the purpose of
producing child pornography, or, at least, (2) that the relevant materials moved
in interstate commerce at a time reasonably near the offense. Looney’s factual
resume states only that he used a camera that was manufactured outside of




      1   18 U.S.C. § 2251(a) states, in pertinent part:
      Any person who employs, uses, persuades, induces, entices, or coerces any
      minor to engage in . . . any sexually explicit conduct for the purpose of
      producing any visual depiction of such conduct . . . shall be punished as
      provided under subsection (e), . . . if that visual depiction was produced or
      transmitted using materials that have been mailed, shipped, or transported in
      or affecting interstate or foreign commerce by any means, including by
      computer . . . .
      2   Id.

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Texas; therefore, he argues, his factual resume is insufficient to support his
conviction.
      The government argues that Looney waived this issue by pleading guilty,
because Looney’s argument on appeal is a disguised reassertion of his
constitutional claims. Alternatively, the government argues that Looney’s
argument on appeal is distinct from his argument at the district court such
that this court should review Looney’s conviction for plain error.
      Looney contends that his argument was not waived by his guilty plea
and is sufficiently related to the arguments he presented in his motion to
dismiss to avoid plain error review.           Accordingly, Looney argues that the
district court’s interpretation of § 2251(a) should be reviewed de novo.
      We need not resolve this issue, because even if Looney did not waive his
argument by pleading guilty, and even if he sufficiently preserved it in the
district court to avoid plain error review, his argument that the factual resume
is not sufficient to support his plea clearly lacks merit.
      In United States v. Dickson, 632 F.3d 186, 192 (5th Cir. 2011), a
defendant appealed his conviction of possession of child pornography under 18
U.S.C. § 2252(a)(4)(B) and production of child pornography under 18 U.S.C. §
2251(a). The jurisdictional hook in both statutes requires the Government to
establish that the pornography was produced using materials that had been in
interstate commerce. To satisfy this element in Dickson, the Government
introduced evidence at trial that the Compact Disc (“CD”) on which the
defendant downloaded and preserved pornographic images was manufactured
in the Republic of China. 3 We affirmed the defendant’s conviction on both
counts. 4 With respect to the possession count, we found that the offense was


      3   Dickson, 632 F.3d at 189.
      4   Id. at 190-92.

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completed when the defendant produced pornography by copying it to a CD
made in China and possessed it in Texas. Since all that was required was
production using “materials which have been mailed or so shipped,” 5 the CD
satisfied the jurisdictional hook. 6 On the production count, the defendant
argued that Congress lacked the power to regulate the purely local conduct of
saving images to a CD. 7 We, again, rejected the defendant’s argument. This
case makes clear that when items transmitted through interstate commerce
are used to produce child pornography, it is sufficient to establish this element
of the offense and the jurisdictional hook required by the Commerce Clause. It
follows that the proof that the camera used to produce the pornography was
shipped into Texas from another state is sufficient to support Looney’s
conviction.
       In support of his interpretation of § 2251(a), Looney relies on the
Supreme Court’s recent decision in Bond v. United States, 134 S. Ct. 2077
(2014). In Bond, the Supreme Court concluded that the Chemical Weapons
Convention Implementation Act of 1998 (“Act”), which makes it a federal crime
for a person to “use or possess any chemical weapon” does not cover wholly
intrastate conduct. 8 The Act was passed by Congress “[t]o fulfill the United
States’ obligations under the Convention” on Chemical Weapons. 9                       That
Convention, which was ratified by 190 countries, was aimed at “prohibiting the


       5 In Dickson, the applicable jurisdictional hook in § 2252(a)(4)(B) states, “produced
using materials which have been mailed or so shipped or transported, by any means including
by computer.” Additionally, the applicable jurisdictional hook in § 2251(a) states, “produced
or transmitted using materials that have been mailed, shipped, or transported in or affecting
interstate or foreign commerce by any means, including by computer.”
       6   Dickson, 632 F.3d at 190.
       7   Id. at 192.
       8   Bond, 134 S. Ct. at 2083, 2093-94.
       9   Id. at 2083.

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development, stockpiling, or use of chemical weapons by any State Party.” 10
Because the Act was implementing an international war treaty, the Supreme
Court held that it could not be used to prosecute local crime where a wife
attempted to injure her husband’s pregnant lover by exposing her to an
arsenic-based chemical compound, which was procured by the wife from her
place of employment. 11
      It is apparent to us that the nature of the statute in Bond, implementing
an international treaty on chemical weapons, bears no resemblance to the
statute at issue in today’s case. Unlike the chemical weapons statute in Bond,
there is every indication that Congress intended to exercise all of its power to
regulate child pornography, including punishing purely local conduct so long
as the minimal jurisdictional hook is satisfied. We are satisfied that Bond does
not undermine our precedent requiring only that the materials used in
producing the pornography have been in, or at least affect, interstate
commerce. Looney admits to using a camera that has been in interstate
commerce. Therefore, his argument regarding the sufficiency of his factual
resume to support his guilty plea is foreclosed by our precedent, which is not
undermined by Bond.
B. Application of the Sentencing Guidelines
      Looney challenges the district court’s conclusion that § 5G1.3(b) of the
United States Sentencing Guidelines did not mandate a reduction of his federal
sentence to account for the year that he had spent in state pretrial custody. In
his brief to this Court, Looney argues that § 5G1.3(b) “recommends” that the
district court credit the federal sentence for any time spent in presentence
custody awaiting trial in state court, if the Bureau of Prisons is not authorized


      10   Id. at 2083-4.
      11   Id. at 2083.

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to grant that credit.           Looney relies on the “Background” portion of the
Commentary to § 5G1.3 of the Sentencing Guidelines and the text of §
5G1.3(b)(1) to support his argument that he is entitled to a reduction in his
sentence for state pretrial custody. 12
          After a careful reading of those sections, however, it is clear that those
sections only refer to the authority of the federal court to impose a concurrent
sentence with an already imposed or anticipated state court sentence. There
is no reference to a federal court crediting pretrial state custody. Section
5G1.3(b) only requires a district court to adjust its sentence under certain
circumstances for time served in connection with a state offense when the state
court has already imposed a sentence. The state court had not imposed a
sentence against Looney when the district court sentenced him.                                The
Commentary only gives the court discretion to impose a concurrent sentence
for anticipated state sentences. In other words, the district court has the
discretion to impose a sentence concurrent with a future state sentence when
state charges are pending against the defendant. This is exactly what the
district court did in Looney’s case; it sentenced Looney to 262 months of
imprisonment “to run concurrently with any state sentence imposed in the



          12   The portion of the “Background” section of the commentary that Looney quotes,
states:
          Federal courts also generally have discretion to order that the sentences they
          impose will run concurrently with or consecutively to other state sentences
          that are anticipated but not yet imposed. See Setser, 132 S. Ct. at 1468.
          Exercise of that discretion, however, is predicated on the court’s consideration
          of the factors listed in 18 U.S.C. § 3553(a), including any applicable guidelines
          or policy statements issued by the Sentencing Commission.

Section 5G1.3(b)(1) states:

          [T]he court shall adjust the sentence for any period of imprisonment already
          served on the undischarged term of imprisonment if the court determines that
          such period of imprisonment will not be credited to the federal sentence by the
          Bureau of Prisons.
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state court action growing out of this same conduct.” Moreover, if Looney gets
convicted and sentenced in state court, we would expect the state court to give
him credit for the time he served in state custody before the state sentence was
imposed. Under the facts of this case, the Guidelines sensibly do not require
the federal sentencing judge to credit him for time spent in state pretrial
custody.
      For the foregoing reasons, we affirm Looney’s conviction and sentence.
AFFIRMED.




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