     Case: 11-50140       Document: 00512188842         Page: 1     Date Filed: 03/27/2013




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

                                                                            FILED
                                                                          March 27, 2013
                                     No. 11-50140
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

DAVID RODRIGUEZ,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:09-CR-805-1


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       David Rodriguez, proceeding pro se, appeals his jury conviction and life
sentence for conspiracy to manufacture methamphetamine and conspiracy to
possess and distribute pseudoephedrine, knowing that the chemical would be
used to manufacture methamphetamine. He first argues that trial counsel
provided ineffective assistance by (a) failing to object to the master jury wheel;
(b) presenting a public authority defense before the jury; (c) failing to request a
mental evaluation and competency hearing; (d) failing to invoke 28 U.S.C. § 1827

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-50140

and obtain an interpreter; and (e) failing to preserve for appeal his claims of
sentencing error.
      “[T]he general rule in this circuit is that a claim for 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).           Because
Rodriguez did not present his ineffective assistance claims in the district court,
no record has been developed with respect to the merits of his allegations, and
we decline to consider these claims on direct appeal. See id.
      Rodriguez next argues that the district court erred by failing to conduct a
§ 1827(d) hearing, sua sponte, to evaluate his ability to hear and comprehend the
proceedings.   He contends that the court’s omission violated his rights to
confront his accusers, to assist with his defense, and to have a fair trial.
Although Rodriguez argues that the court should have realized that he could not
hear, based on the portions of his trial testimony where he indicated that he was
having trouble hearing, the instances cited by Rodriguez establish that, once a
question was repeated, Rodriguez understood and provided an answer. In light
of this and Rodriguez’s various appearances before the district court over the
course of his criminal proceedings, during which he sought and successfully
persuaded the court to dismiss his appointed counsel on two occasions, he has
failed to show that the district court committed any error, plain or otherwise, as
to this issue. See United States v. Perez, 918 F.2d 488, 490-91 (5th Cir. 1990).
      Rodriguez also argues that the district court erred by failing to conduct a
mental competency hearing, on its own motion pursuant to 18 U.S.C. § 4241,
because there was sufficient evidence showing he was not competent to stand
trial. Considering Rodriguez’s actions both at trial, where he provided lucid
responses to the questions presented to him, and during pretrial appearances,
Rodriguez has not shown that reasonable cause existed to put the district court

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                                   No. 11-50140

on notice that he was “mentally incompetent to the extent that he [was] unable
to understand the nature and consequences of the proceedings against him or to
assist properly in his defense.” § 4241(a); see also United States v. Messervey,
317 F.3d 457, 462-63 (5th Cir. 2002); United States v. Davis, 61 F.3d 291, 303-04
(5th Cir. 1995).   Accordingly, as to this claim, we find no error, plain or
otherwise.
      Rodriguez next contends that the district court procedurally erred at
sentencing by failing to calculate the advisory guidelines range; treating the
Sentencing Guidelines as mandatory; presuming that the guidelines range was
reasonable; failing to consider the sentencing factors set forth in 18 U.S.C.
§ 3553(a); and failing adequately to explain its calculation of his base offense
level and the amount of pseudoephedrine involved in his offense, as well as the
reasons for its sentencing decision. Because Rodriguez raises these arguments
for the first time on appeal, our review is for plain error. United States v.
Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009). To prevail, Rodriguez
must show a forfeited error that is clear or obvious and affects his substantial
rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes this
showing, we have the discretion to correct the error but will do so only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks and citation omitted).
      Contrary to Rodriguez’s assertions, the record shows that the district court
calculated the advisory guidelines range. As to Rodriguez’s arguments that the
district court procedurally erred by treating the Sentencing Guidelines as
mandatory and presuming that the guidelines range was reasonable, we find no
clear or obvious error.
      As to Rodriguez’s claim that the district court failed to consider the
§ 3553(a) sentencing factors, the proceedings imply consideration of these
factors. See United States v. Izaguirre-Losoya, 219 F.3d 437, 440 (5th Cir. 2000).
Specifically, the presentence report, sentencing memoranda, and statements by

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                                  No. 11-50140

counsel and Rodriguez during the sentencing hearing alerted the district court
to the nature and circumstances of the instant offense, Rodriguez’s history and
characteristics, his criminal history, the sentences imposed in the cases of
Rodriguez’s numerous codefendants, and the dangers to the public that resulted
from the instant conspiracy. In light of the foregoing, we find no clear or obvious
error. See id.
      Rodriguez’s claim that the district court provided an inadequate
explanation of its sentencing decision likewise fails. Even if the district court’s
explanation of the within-guidelines sentence is considered inadequate,
Rodriguez cannot prevail on plain error review because there is no indication
that he would have received a lesser sentence if the district court had given a
different or more adequate explanation. See Mondragon-Santiago, 564 F.3d at
364-65. Because Rodriguez has not shown that the sentencing outcome was
affected by any error in the district court’s articulated reasoning for the sentence
imposed, he has not established reversible plain error. See id.
      Accordingly, the judgment of the district court is AFFIRMED.




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