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

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 4:99-CR-60-1 - - - - - - - - - - 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

(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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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,

(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,

(5th Cir. 2000) (citation

omitted). There is no error, plain or otherwise.

The conviction and sentence are AFFIRMED.