United States v. Rafael Pedrez , 544 F. App'x 376 ( 2013 )

Case: 12-40668 Document: 00512239748 Page: 1 Date Filed: 05/13/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 13, 2013
No. 12-40668
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
RAFAEL PEDREZ,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:12-CR-4-1
Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Rafael Pedrez appeals his 87-month sentence following his guilty plea to
bank robbery. He contends that the district court erred by attributing three
criminal history points each to his conviction for aggravated assault and his
conviction for felony littering. Specifically, he avers that, pursuant to U.S.S.G.
§ 4A1.2, comment. (n.11), one of the convictions should have received only one
point because his probation was revoked on both convictions on the same day,
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 12-40668 Document: 00512239748 Page: 2 Date Filed: 05/13/2013
No. 12-40668
and he was sentenced to three years of imprisonment upon revocation in both
cases.
Pedrez did not raise his contention in the district court, and his contention
is reviewed for plain error. To show plain error, Pedrez must demonstrate
(1) that there was an error, (2) that it was clear or obvious, and (3) that it
affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If he makes that showing, this court has the discretion to correct the
error, but only if it seriously affects the fairness, integrity, or public reputation
of judicial proceedings. Henderson v. United States, 133 S. Ct. 1121, 1126 (2013).
There is no published decision of this court addressing the scoring formula
set out in Application Note 11. The circuits that have addressed the issue have
obtained different results. See United States v. Norris, 319 F.3d 1278, 1286-87
(10th Cir. 2003); cf. United States v. Flores, 93 F.3d 587, 592 (9th Cir. 1996);
United States v. Streat, 22 F.3d 109, 110-11 (6th Cir. 1994). Because this court
has not ruled on the interpretation of § 4A1.2(k) as advanced by Pedrez, and
because there is a circuit split on the issue, we cannot hold that the district court
plainly erred in assigning three points for each parole revocation. See Puckett,
556 U.S. at 135; United States v. Sanchez-Garcia, 307 F. App’x 829, 831-32 (5th
Cir. 2009).
Pedrez also contends that counsel was ineffective at sentencing. We
decline to consider this claim on direct appeal because the record has not been
sufficiently developed. See United States v. Cantwell, 470 F.3d 1087, 1091 (5th
Cir. 2006). The judgment of the district court is AFFIRMED.
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