United States v. Hernandez-Castorena

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50355
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MANUEL HERNANDEZ-CASTORENA, ALSO KNOWN AS
ANGEL ACEVEDO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CR-2089-ALL-DB
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December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Manuel Hernandez-Castorena (Hernandez) argues that he is
entitled to be resentenced because the district court failed to
verify that counsel had read and discussed his presentence report
(PSR) with him prior to sentencing as required by FED. R. CRIM. P.
32(c)(3)(A).
We agree that the district court failed to comply with Rule
32(c)(3)(A). However, because Hernandez did not raise the issue
of noncompliance in the district court, we will correct the error
only if it was plain and affected Hernandez’s substantial rights.

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No. 01-50355
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See United States v. Esparza-Gonzalez, 268 F.3d 272, 273-74 (5th
Cir. 2001); see also United States v. Olano, 507 U.S. 725, 732-34
(1993).
Hernandez failed to object to the Rule 32(c)(3)(A) violation
in the district court. He does not argue that he did not review
or discuss his PSR with his attorney; instead, he relies on the
absence of any record evidence to indicate that he reviewed and
discussed the PSR with counsel. Thus, Hernandez has not
demonstrated that he was prejudiced by the court’s failure to
comply with Rule 32(c)(3)(A). Because Hernandez has failed to
carry his burden of demonstrating prejudice, he has not
established plain error. See United States v. Vasquez, 216 F.3d
at 456, 459 (5th Cir.), cert. denied, 531 U.S. 972 (2000).
The district court’s failure to advise Hernandez that he had
the right to be assisted by counsel if he elected to proceed to a
jury trial was harmless.
AFFIRMED.

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