United States v. Pistole

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 8, 2003
• Docket: 02-20077
• Status: Unpublished

Opinion

United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT December 11, 2002

Charles R. Fulbruge III Clerk No. 02-20077 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LLEWELLYN OKEITH PISTOLE,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-634-1 --------------------

Before JOLLY, DAVIS, and JONES, Circuit Judges.

PER CURIAM:*

Llewellyn Okeith Pistole appeals his sentence following his

guilty plea to one count of bank robbery. It is undisputed that

the district court did not specifically inquire whether Pistole

read the presentence report (“PSR”) and discussed it with his

counsel, and that no “reasonable inference” can be drawn that the

court verified that Pistole had read and discussed the PSR. See

FED. R. CRIM. P. 32(c)(3)(A); United States v. Esparza-Gonzales,

268 F.3d 272, 274 (5th Cir. 2001), cert. denied, 122 S. Ct. 1547

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-20077 -2-

(2002). Pistole does not contend that he did not read the PSR,

only that the court’s failure to ascertain that he read it caused

him prejudice. Neither does he challenge the contents of the

PSR.

We review Pistole’s claim only for “plain error” because

Pistole did not object to the omission in the district court.

Id. To reverse under plain-error review, the error must be clear

and obvious, it must affect the defendant’s substantial rights,

and a failure to correct the error must seriously affect the

fairness, integrity, or public reputation of the judicial

proceedings. See United States v. Calverley, 37 F.3d 160, 162

(5th Cir. 1994).

There is no indication that verification that Pistole

himself read the PSR would have made the slightest difference in

his sentence. See United States v. Ravitch, 128 F.3d 865, 869

(5th Cir. 1997) (noting that, under plain-error review, it is

pointless to remand if the district court could have imposed the

same sentence). In sum, this appeal is frivolous and is

therefore DISMISSED.

DISMISSED AS FRIVOLOUS.