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that this opinion should not be published and is not precedent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.