     Case: 10-50780     Document: 00511558501         Page: 1     Date Filed: 08/02/2011




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

                                                                            FILED
                                                                           August 2, 2011
                                     No. 10-50780
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ROGELIO LOPEZ-MONTES,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 3:10-CR-203-1


Before REAVLEY, SMITH, and PRADO, Circuit Judges.
PER CURIAM:*
        Rogelio Lopez-Montes appeals the 57-month sentence imposed following
his guilty plea convictions for attempted illegal reentry and false personation of
another, in violation of 8 U.S.C. § 1326(a) and 18 U.S.C. § 1546. He contends
that the district court erred when it assessed an additional criminal history
point pursuant to U.S.S.G. § 4A1.1(e) because it miscalculated the time between
his release from custody and his commission of the instant offenses. Because
Lopez-Montes did not object on this basis in the district court, our review is

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 10-50780

limited to plain error only. See United States v. Jasso, 587 F.3d 706, 709 (5th
Cir. 2009).
      In calculating Lopez-Montes’s criminal history, the district court included
one criminal history point pursuant to § 4A1.1(e) based on the probation officer’s
assertion that Lopez-Montes committed the instant offenses less than two years
following his release from custody on June 7, 2007. However, the instant
offenses occurred on January 2, 2010, over two years after Lopez-Montes’s
release from custody.      As the parties agree, the district court made a
mathematical error in calculating Lopez-Montes’s criminal history score.
Because this conclusion is reached by a “straightforward application of the
guidelines,” the error was also clear or obvious. United States v. Blocker, 612
F.3d 413, 416 (5th Cir.), cert denied, 131 S. Ct. 623 (2010).
      Had the error not occurred, Lopez-Montes’s criminal history category
would have been III instead of IV, and with a total offense level of 21, his
advisory guidelines imprisonment range would have been 46 to 57 months
instead of 57 to 71 months. The guidelines ranges overlap by one month. When,
as here, a sentence falls within both the correct and incorrect guidelines ranges,
we have “shown considerable reluctance in finding a reasonable probability that
the district court would have settled on a lower sentence” and “do not assume,
in the absence of additional evidence, that the sentence affects a defendant’s
substantial rights.” Id.
      Lopez-Montes argues that because the district court sentenced him to the
bottom of the incorrect guidelines range, it would probably have sentenced him
to the bottom of the correct guidelines range. Although it is possible that the
district court would have imposed a sentence at the bottom of the correct
guidelines range, Lopez-Montes does not point to anything in the record to
demonstrate the requisite probability of such a result.         The district court
considered and rejected Lopez-Montes’s request for a downward variance.
Moreover, the district court noted that all of his offenses had not been included

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                                  No. 10-50780

in the calculation of his criminal history and specifically asserted that a 57-
month sentence, as opposed to merely a sentence at the bottom of the guidelines
range, was appropriate in this case. Lopez-Montes has failed to demonstrate
that but for the error, his sentence would have been lower. See Jasso, 587 F.3d
at 713-14 & n.11. Accordingly, he cannot demonstrate plain error. See Blocker,
612 F.3d at 416-17.
      To the extent that Lopez-Montes asserts that trial counsel’s failure to
object to the sentence based on the improperly calculated criminal history score
constituted ineffective assistance of counsel, “the general rule in this circuit is
that a claim of ineffective assistance of counsel cannot be resolved on direct
appeal when the claim has not been raised before the district court since no
opportunity existed to develop the record on the merits of the allegations.”
United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006) (internal
quotation marks and citation omitted). Accordingly, because Lopez-Montes did
not raise this claim in the district court, the issue is not appropriate for direct
appeal. The judgment of the district court is AFFIRMED.




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