IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-50140

Summary Calendar

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

United States Court of Appeals

Fifth Circuit

F I L E D

March 27, 2013

Lyle W. Cayce

Clerk

* 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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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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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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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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