     Case: 10-20268 Document: 00511390636 Page: 1 Date Filed: 02/23/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 23, 2011
                                     No. 10-20268
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

RAFAEL RICHARTE,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CR-543-1


Before GARWOOD, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       Rafael Richarte appeals the 57-month term of imprisonment imposed by
the district court following his guilty plea conviction of one count of conspiring
to interfere with commerce by robbery, in violation of 18 U.S.C. § 1951,
commonly known as the Hobbs Act. He argues that the district court erred in
its determination that U.S.S.G. § 2X1.1 was applicable to his offense. Richarte
maintains that the district court should have applied U.S.S.G. § 2B3.1.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
    Case: 10-20268 Document: 00511390636 Page: 2 Date Filed: 02/23/2011

                                  No. 10-20268

      This court typically reviews a district court’s interpretation or application
of the Sentencing Guidelines de novo. United States v. Cisneros-Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008). However, “[w]hen a defendant objects to his
sentence on grounds different from those raised on appeal, we review the new
arguments raised on appeal for plain error only.”              United States v.
Medina-Anicacio, 325 F.3d 638, 643 (5th Cir. 2003).
      The parties dispute the applicable standard of review. The Government
argues for plain error review because Richarte did not object to the application
of § 2X1.1 in the district court. Richarte maintains that the issue was preserved
because the district court was asked at the sentencing hearing to determine
whether § 2B3.1 or § 2X1.1 was to be applied, and he notes that he set forth
alternative arguments in the district court as to how the guidelines should be
applied under each section.
      “To preserve error, an objection must be sufficiently specific to alert the
district court to the nature of the alleged error and to provide an opportunity for
correction.” United States v. Neal, 578 F.3d 270, 272 (5th Cir. 2009). Exacting
precision is not required; nor is it necessary that the district court properly
construe the issue or rule on it. See id. at 272-73. A defendant will not be
limited to plain error review if he did not have an opportunity to object at
sentencing, or if “the party made its position clear to the district court and to
have objected would have been futile.” United States v. Castillo, 430 F.3d 230,
242 (5th Cir. 2005).
      Richarte did not contend in the district court that § 2B3.1 was the
guideline applicable to his offense, nor did he argue against the application of
§ 2X1.1. Indeed, in his written objections to the Presentence Report, Richarte
argued that § 2X1.1 was the appropriate section of the Guidelines for a
conspiracy to commit a violation of the Hobbs Act. Richarte also did not object
at the sentencing hearing after the district court had expressed its
determination that § 2X1.1 applied.

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    Case: 10-20268 Document: 00511390636 Page: 3 Date Filed: 02/23/2011

                                  No. 10-20268

      Because Richarte did not preserve the issue, we will review for plain error.
See United States v. Alvarado-Santilano, 434 F.3d 794, 795 (5th Cir. 2005). To
demonstrate plain error, an appellant must show a forfeited error that is clear
or obvious and that affects his substantial rights. See Puckett v. United States,
129 S. Ct. 1423, 1429 (2009). If he makes such a showing, this court has the
discretion to correct the error but only if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. See id.
      Under our precedent, § 2X1.1 is the guideline applicable to a conspiracy
to violate the Hobbs Act by extortion. United States v. Villafranca, 260 F.3d 374,
381 (5th Cir. 2001). We have not specifically addressed whether § 2X1.1 is
applicable to a conspiracy to interfere with commerce by robbery. The published
opinions of other circuits reveal a split on this question. See, e.g. United States
v. Amato, 46 F.3d 1255, 1261-62 (2d Cir. 1995) (holding that § 2X1.1 is
applicable); United States v. Thomas, 8 F.3d 1552, 1564-65 (11th Cir. 1993)
(holding that § 2X1.1 is inapplicable).
      An appellant cannot demonstrate plain error where this circuit’s law is
unsettled and other federal circuits have reached divergent conclusions. United
States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007). Because Richarte has not
met his burden to establish plain error, the judgment of the district court is
AFFIRMED.




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