Opinion
No. 11-30099
09-26-2011
UNITED STATES OF AMERICA, Plaintiff-Appellee v. LARRY CAILLIER, II, Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:10-CR-76-1
Before REAVLEY, SMITH, and PRADO, Circuit Judges. PER CURIAM:
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Larry Caillier, II, appeals from his guilty plea conviction for receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(1)(A). The district court sentenced Caillier to 168 months of imprisonment, 15 years of supervised release, and registration as a sex offender. He argues on appeal that none of the four images he received on his cellular phone constituted child pornography and that he therefore pleaded guilty to a crime that was never committed. Because he has raised this argument for the first time on appeal, we review the issue only for plain error. Puckett v. United States, 556 U.S. 129, 129 S. Ct. 1423, 1429 (2009); United States v. Marek, 238 F.3d 310, 315 (5th Cir. 2001) (en banc).
Caillier specifically asserts that the sole photograph showing the victim's genitals or pubic area does not qualify as the "lascivious exhibition of the genitals or pubic area of any person" for purposes of 18 U.S.C. § 2256(2)(A)(v) because the victim's genitals or pubic area is covered by clothing in the photograph, the focal point of the photograph is not the victim's genitals or pubic area, and the other aspects of the depiction in the photograph do not meet the relevant Dost factors. See United States v. Steen, 634 F.3d 822, 826-27 (5th Cir. 2011) (analyzing Dost factors to determine whether depictions meet definition of lascivious exhibition of the genitals or pubic area). After examination of the evidence and analysis of the Dost factors, we conclude that Caillier has failed to show clear or obvious error as to this issue. See Puckett, 129 S. Ct. at 1429.
United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986).
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The district court's judgment is AFFIRMED.