### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

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, ap p eals his jury conviction and life sentence for co n s p i r acy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine, knowing that the chemical wou l d b e used to m anufacture methamphetamine. He f i rst argues that trial counsel provided ineffective assistance by (a) failing to object to the master jury wheel; (b) presenting a p ublic authority defense before the jury; (c) failing t o request a mental evaluation and c o mpetency hearing; (d) failing to invoke 28 U.S.C. § 1827 U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 27, 2013 Ly l e W . Cayce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 11-50140 Document: 00512188842 Page: 1 Date Filed: 03/27/2013No. 11-50140

and obtain an interpreter; and (e) f ailing to preserve f

or 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 a p p e a l w h e n the cl aim has not been raised before the district court since n o opportunity existed to d evelop the record

on the merits o f the allegations.” United States v . Cantwell , 470 F.3d 1087, 1091 (5th Cir. 2006) (internal quotation marks a nd citation omitt e d)

. 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 b y failing to conduct a § 1 827(d) hearing, sua sponte, to evaluate his ability to h ear and comprehend the proceedi n g s . He contends that the court’s omission violated his rights to confront his accusers, to assis t w i th 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 h earing, the instances cited by Rodriguez establish that, once a question was repeated, Rodriguez understood and provided a n 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 s uccessfully persuaded the court to dismis s h i s a p p ointed 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 e rred by failing t o c onduct a mental competency hearing, on its own m o t i o n p ursuant to 18 U.S.C. § 4241, bec a u s e t h e re was sufficient evidence showing he w as not competent to stand trial. Considering Rodriguez’s actions both at trial, where he provided lucid
responses to the questions p resented to him, and during pretrial appearances, Rodriguez has n ot shown that reasonable cause existed to put the district court
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on n otice 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 pro p e rly in his defense.” § 4241(a); see also United States v. Messervey , 317 F.3d 457, 462-63 (5th C ir. 2002); U nited States v. Davis , 61 F.3d 291, 303-04 (5th Cir. 1995). Accordingly, as to this claim, we f ind no err o r, plain or otherwise. Rodriguez next contends that the district court p r o c edurally erred at sentencing b y failing to calculate the advisory guidelines range; treating the Sentencing Guidelines as m andatory; presuming that the guidelines range was reasonable; failing to consider the sentencing factors s e t f o rth in 18 U.S.C. § 3553(a); and failing adequately to explain its calculatio n o f his base offense level and the amount of pseudoephedrine involved in his offense, as well as the

reasons for its s entencing decision. Because Rodriguez raises these arguments for the first t i m e o n a p p e al, our review is for plain error. United States v. Mondragon-Santiago , 564 F.3d 357, 361 (5th C ir . 2009). To prevail, Rodriguez must show a f

orfeited error that is clear or obvious and affects his substantial rights. Puckett v. U

nited States , 556 U.S. 129, 135 ( 2 0 0 9 )

. I f he makes this showing, w e h av e t h e di s c retion to correct the error b ut will do so only if it “seriously affect[s] the fairne s s , i n tegrity or public reputation of judicial proceedings.” Id. (internal quotation marks and citation omitted). Contrary to Rodriguez’s a s s ertio n s , th e re cord shows that the district court calculated the advisory guidelines range. As t o Rodriguez’s arguments that the district court procedural l y e rred 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 f ailed to c o n s i d e r 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 r eport, sentencing memoranda, and statements by
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counsel and Rodriguez during the sentencing hearing alerted the di strict court to the nature and circumstances of the instant offense, Rodriguez’s history and characteristics, his crimina l h istory, the sentences imposed in the cases of Rodriguez’s numerous codefendants, and the dangers to the public that resulted from the instant c onspiracy. I n light o f the foregoing, w e find no clear or obvious

error. See id. Rodriguez’s claim t h at 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 c onsidered inadequate, Rodriguez cannot prevail on plain error r eview because t h ere is no indication that he would hav e r e ceived a lesser s entence if the district court h ad given a different or more adequate e xplanation. See Mondragon-Santiago , 5 64 F.3d at 364-65. Because Rodriguez has not shown that the sentencing outcome was affected by any e rror in the district court’s articulated reasoning f or the s entence imposed, he has not established reversible plain error

. See id. Accordingly, the judgment of the district court is AFFIRMED.

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