United States v. Jasso-Elizondo

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-21189 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus EDUARDO JASSO-ELIZONDO, Defendant-Appellant. -------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-01-CR-319-ALL -------------------- August 21, 2002 Before HIGGINBOTHAM, DAVIS, and PARKER, Circuit Judges. PER CURIAM:* Eduardo Jasso-Elizondo argues that the district court plainly erred in failing to verify that he had read and discussed the presentence report (PSR) with his counsel as required by FED. R. CRIM. P. 32(c)(3)(A). A review of the sentencing hearing transcript reflects that the district court did not ascertain whether Jasso had read and reviewed the PSR with counsel. Because Jasso did not object to the omission in the district * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-21189 -2- court, this court could “correct the error only if the error was plain and affected [Jasso’s] substantial rights.” See United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001), cert. denied, 122 S. Ct. 1547 (2002). Although FED. R. CRIM. P. 32 has not been interpreted as creating an absolute requirement that the district court specifically ask a defendant whether he has read the PSR, see id., the record does not raise a reasonable inference that Jasso personally reviewed the report and discussed it with his counsel. However, Jasso has not shown that the error affected his substantial rights. Jasso has not argued that he did not read and review the PSR. Nor has he demonstrated the existence of factual inaccuracies in the PSR that, if successfully challenged, would have resulted in his receiving a lesser sentence. Because Jasso has not demonstrated that he was prejudiced by the district court’s failure to strictly comply with FED. R. CRIM. P. 32, he has failed to demonstrate plain error. See id. The sentence imposed is AFFIRMED.