United States v. Martinez-Rodriguez

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50032 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOSE LUIS MARTINEZ-RODRIGUEZ, also known as Miguel Angel Sanchez-Hernandez,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-1553-1-DB -------------------- July 19, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Jose Luis Martinez-Rodriguez ("Martinez") appeals his

guilty-plea conviction and sentence for being an alien found

illegally in the United States subsequent to deportation. See 8

U.S.C. § 1326(a), (b)(2). Martinez argues that the district

court erred at sentencing by failing to verify that Martinez and

his counsel had read and discussed the presentence report (PSR),

as required by Fed. R. Crim. P. 32(c)(3)(A). He concedes that

the record supports the inference that defense counsel had

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50032 -2-

reviewed the PSR. However, he asserts that nothing in the record

supports a similar inference that he reviewed the PSR. He

contends that the error is not subject to harmless-error or

plain-error analysis, and therefore, his sentence should be

vacated and the case remanded for resentencing.

Because Martinez did not raise the issue of noncompliance

with Rule 32(c)(3)(A) in the district court, we review only for

plain error. See United States v. Vasquez, 216 F.3d 456, 458-59

(5th Cir.), cert. denied, 121 S. Ct. 414 (2000); United States v.

Stevens, 223 F.3d 239, 242 (3d Cir. 2000). Although Martinez has

demonstrated that the district court’s oversight at sentencing

amounted to Rule 32(c)(3)(A) error, he fails in his burden to

demonstrate that the error affected his substantial rights. See

United v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994) (en

banc); see also United States v. Olano, 507 U.S. 725, 734 (1993)

(burden resides with defendant to demonstrate that substantial

rights were affected). Martinez does not contend that he did not

read or discuss the PSR with defense counsel. He fails to assert

any prejudice ensuing from the court’s Rule 32(c)(3)(A)

oversight. Therefore, he fails to establish plain error. See

Vasquez, 216 F.3d at 459; Stevens, 223 F.3d at 243-46.

AFFIRMED.