IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40507
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
RODNEY JOE NEWBERRY
Defendant - Appellant
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:99-CR-60-1
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February 7, 2001
Before KING, Chief Judge, and JONES and STEWART, Circuit Judges.
PER CURIAM:*
Rodney Joe Newberry appeals his guilty-plea conviction and
sentence for possession of child pornography, a violation of 18
U.S.C. § 2252(a)(4)(B). For the first time on appeal, Newberry
argues that the Government breached its plea agreement with him
by seeking to have him held accountable, for sentencing purposes,
for more pornographic images than he admitted to possessing as
part of the agreement.
*
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that this opinion should not be published and is not precedent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.
No. 00-40507
-2-
The breach claim is raised for the first time on appeal and
is thus subject to review only for plain error. See United
States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en
banc). Moreover, Newberry fails to acknowledge that, as part of
his plea agreement, he “waive[d] any appeal . . . of any error
which may occur surrounding the substance, procedure, or form of
the conviction and sentencing in this case.” Under the amended
FED. R. CRIM. P. 11(c)(6), however, the district court was
required to advert to the waiver-of-appeal provision at
Newberry’s sentencing proceeding. It is not clear that the court
did so.
In any event, Newberry’s substantive contention is
frivolous. Pursuant to the terms of the plea agreement, Newberry
acknowledged that “the Government may argue to the [sentencing]
Court and probation that additional relevant conduct, aside from
that set out in the factual resume, should be considered in
determining NEWBERRY’s sentence.” Newberry has not remotely
shown that “‘the government’s conduct [was] [in]consistent with
[his] reasonable understanding of the agreement.’” See United
States v. Saling, 205 F.3d 764, 766 (5th Cir. 2000) (citation
omitted). There is no error, plain or otherwise.
The conviction and sentence are AFFIRMED.