     Case: 17-11010      Document: 00514634787         Page: 1    Date Filed: 09/10/2018




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

                                    No. 17-11010                                  FILED
                                  Summary Calendar                        September 10, 2018
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

BRYAN RAFAEL CERDA, also known as Rafael Moreno,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:16-CR-286-9


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Bryan Rafael Cerda appeals the sentence imposed after he pleaded
guilty to conspiring to possess with intent to distribute methamphetamine.
The district court reduced the guideline sentence by 27 months under U.S.S.G.
§ 5G1.3(b) in consideration of an undischarged state sentence. But it ordered
the federal sentence to run consecutively to an undischarged state sentence for




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-11010     Document: 00514634787      Page: 2   Date Filed: 09/10/2018


                                   No. 17-11010

heroin trafficking. Cerda contends that the federal sentence should have been
made to run concurrently with the heroin sentence.
      The Government asserts that, according to a written plea agreement,
Cerda has waived his right to appeal, subject to exceptions including a claim
of arithmetic error and claim of ineffective assistance of counsel. Cerda does
not challenge the validity of the waiver but contends that his sentencing claims
are excepted from the waiver because they concern inherent arithmetic errors
in calculating the dates of his heroin sentence and a related state sentence for
marijuana possession.         Absent some indication that the parties meant
something else, we construe “arithmetic error to mean simply an error
involving a mathematical calculation.” United States v. Minano, 872 F.3d 636,
636 (5th Cir. 2017) (internal quotation marks and citation omitted). Cerda’s
claims concern errors of fact or law about the status of his state sentences and
the application of § 5G1.3(b). The claims do not fit within our narrow definition
of arithmetic error and are barred by the appeal waiver. See id.
      Cerda also argues that counsel rendered ineffective assistance by failing
to object to the district court’s errors of law in applying § 5G1.3(b). A claim of
ineffective counsel is typically not sufficiently developed for consideration on
direct appeal. See United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
Cerda asserts that the record is adequate in this case, but we decline to address
the claim because the relevant issues are best resolved in a motion under 28
U.S.C. § 2255. See Massaro v. United States, 538 U.S. 500, 503-09 (2003).
      In light of the valid and enforceable waiver of appeal, the Government’s
motion to dismiss the appeal is GRANTED, and the appeal is DISMISSED
without prejudice to Cerda filing a § 2255 motion in which he may assert the
ineffectiveness of counsel.




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