IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10203

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

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.

United States Court of Appeals

Fifth Circuit

FILED

April 7, 2015

Lyle W. Cayce

Clerk

 

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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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