IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20181
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MICHAEL ROSENBLUM,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-750-ALL
December 13, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
David Michael Rosenblum appeals the sentence imposed after he
pleaded guilty to bank robbery under 18 U.S.C. § 2113(a). He first
argues that the district court’s upward departure from the
Sentencing Guidelines was unreasonable. The district court did not
abuse its discretion by increasing Rosenblum’s offense level from
nineteen to twenty on the ground that his criminal history
category, although increased from V to VI, significantly
*
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this opinion should not be published and is not precedent except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.
underrepresented the likelihood that he will commit additional
offenses.1
Rosenblum additionally argues that he is entitled to be
resentenced because the district court committed plain error in
failing to determine that he and his counsel had read and discussed
the presentence report, in violation of Federal Rule of Criminal
Procedure 32(c)(3)(A). We conclude otherwise, as Rosenblum has not
shown that such an omission affected his substantial rights.2 He
argues that because the district court apparently relied on his
criminal history as set out in the PSR in upwardly departing, the
failure to ascertain that he read and reviewed the PSR with counsel
was prejudicial. However, Rosenblum is not entitled to relief
because he does not suggest how he may have been prejudiced, such
as if the PSR had misstated his criminal history.3
AFFIRMED.
1
United States Sentencing Guidelines Manual § 4A1.3, p.s.
(2001); see United States v. Ashburn, 38 F.3d 803, 808-10 (5th Cir.
1994) (en banc).
2
United States v. Esparza-Gonzalez, 268 F.3d 272, 273-74 (5th
Cir. 2001), cert. denied, 122 S. Ct. 1547 (2002).
3
Rosenblum also contends that a Rule 32(c)(3)(A) violation is
reversible error per se, but acknowledges that this argument is
foreclosed by Esparza-Gonzales. 268 F.3d at 274. He thus
preserves this argument for further review.
2