United States of America v.  Jesus Solorio-Acosta

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-4954 
JESUS SOLORIO-ACOSTA,
Defendant-Appellant. 
Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, District Judge.
(CR-02-152)
Submitted: December 17, 2003
Decided: January 15, 2004
Before LUTTIG, MICHAEL, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Marilyn G. Ozer, MASSENGALE & OZER, Chapel Hill, North Car-
olina, for Appellant. Anna Mills Wagoner, United States Attorney,
Randall S. Galyon, Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION
PER CURIAM:
Jesus Solorio-Acosta pled guilty to conspiracy to distribute cocaine
hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).
The district court sentenced him to 120 months imprisonment, five
years supervised release, and a special assessment of $100. On
appeal, Solorio-Acosta contends that the district court erred by (1)
failing to verify that he and his counsel had an opportunity to review
the presentence report before sentencing and (2) failing to provide a
written or oral Spanish translation of the presentence report in viola-
tion of his constitutional rights to due process and effective assistance
of counsel. Finding no reversible error, we affirm.
On appeal, Solorio-Acosta challenges various aspects of his sen-
tencing. Because none of his assignments of error were presented to
the district court, we review his claims under the well-known plain
error analysis of Federal Rule of Criminal Procedure 52(b). See
United States v. Olano, 507 U.S. 725, 731-35 (1993).
Solorio-Acosta first contends that the record fails to show that the
district court verified that he and his counsel read and discussed the
presentence report before the court imposed sentence. See Fed. R.
Crim. P. 32(i)(1)(A).
A sentencing court "need not expressly ask whether the defendant
has read the presentence report and discussed it with his counsel, pro-
vided ‘there is . . . evidence in the record from which one could rea-
sonably infer’ that the defendant and his counsel have read and
discussed the report." United States v. Lockhart, 58 F.3d 86, 88 (4th
Cir. 1995)(internal citations omitted).
Although the record does not show that the court expressly asked
Solorio-Acosta whether he had read the report, we conclude that the
record supports the inference that Solorio-Acosta and his counsel in
fact read and discussed the report prior to sentencing. While Lockhart
makes clear that a written objection, standing alone, is not a sufficient
basis to find compliance with Rule 32, see 58 F.3d at 88-89, here the
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evidence shows that Solorio-Acosta’s counsel not only objected in
writing but also pursued the objection at the sentencing proceeding,
at which Solorio-Acosta and an interpreter were present. Second, in
reference to one of Solorio-Acosta’s objections to the PSR, the judge
asked his attorney if Solorio-Acosta was going to provide a statement
to the Government in order to fulfill the requirements of the safety
valve provision of the Sentencing Guidelines. Counsel stated to the
judge, "I have talked with him today about that very issue, and he
wishes to do that." Subsequently, counsel wrote a letter to the Gov-
ernment discussing his revelations from a recent interview with
Solorio-Acosta. Furthermore, in open court and in the presence of
Solorio-Acosta, his attorney discussed the letter and interview.
Finally, in reference to the PSR statements made by a co-defendant,
Solorio-Acosta’s attorney stated to the court, "[Solorio-Acosta] would
ask that just the statements of his co-defendant not be allowed." (JA.
Vol. II at 57). We are therefore satisfied that Solorio-Acosta and his
counsel read and discussed the report prior to sentencing, even though
this was not explicitly verified on the record. Accordingly, we find no
plain error.
Solorio-Acosta also contends that the district court erred by failing
to provide a written or oral Spanish translation of the presentence
report, and that this failure deprived him of his constitutional rights
to due process and effective assistance of counsel.
Solorio-Acosta correctly states that the court must ensure "every
defendant stands equal before the law." Gideon v. Wainwright, 372
U.S. 335, 344 (1963). The record establishes that a duly sworn inter-
preter was provided at the sentencing hearings and change of plea
hearing. Furthermore, Solorio-Acosta told the court that a translation
of the plea agreement had been provided. Subsequently, Solorio-
Acosta agreed to cooperate in the preparation of the presentence
report. After the report was disseminated, Solorio-Acosta’s attorney
filed objections, and Solorio-Acosta and an interpreter were present
at both sentencing hearings while his attorney pursued those objec-
tions. We are therefore satisfied that the district court safeguarded
Solorio-Acosta’s procedural and substantive rights. Accordingly, we
find no plain error.
For the foregoing reasons, the judgment of the district court is
affirmed. We dispense with oral argument because the facts and legal
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arguments are adequately presented in the materials before the court
and argument would not aid the decisional process.
AFFIRMED
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