United States v. Rodriguez ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40685
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOEL RODRIGUEZ,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. M-95-CV-26
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May 21, 1999
Before KING, Chief Judge, HIGGINBOTHAM and SMITH, Circuit Judges.
PER CURIAM:*
Noel Rodriguez, federal prisoner # 52254-079, appeals the
district court’s dismissal of his 28 U.S.C. § 2255 motion.
Rodriguez argues that his attorney was ineffective because he
failed to object to the career-offender enhancement to
Rodriguez’s drug-conspiracy sentence and to the presentence
report’s consideration of a prior misdemeanor offense when
determining Rodriguez’s criminal history category.
The inapplicability of the 1990 Sentencing Guidelines
*
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that this opinion should not be published and is not precedent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.
No. 98-40685
-2-
career-offender provision to Rodriguez’s drug-conspiracy
conviction was not addressed by this circuit until 1994, three
years after Rodriguez’s sentence. See United States v.
Bellazerius, 24 F.3d 698, 701-02 (5th Cir. 1994). Rodriguez’s
attorney was not ineffective for failing to anticipate new
developments in the law. See Lucas v. Johnson, 132 F.3d 1069,
1078-79 (5th Cir. 1998). Furthermore, given that his criminal
history category would have been the same regardless of a
successful objection to the consideration of Rodriguez’s prior
misdemeanor offense, Rodriguez cannot show prejudice with
respect to his ineffective-assistance-of-counsel claim based on
the presentence report’s consideration of his prior misdemeanor
offense. See United States v. Seyfert, 67 F.3d 544, 548-49 (5th
Cir. 1995).
AFFIRMED.