United States v. Pistole

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 11, 2002
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20077
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LLEWELLYN OKEITH PISTOLE,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CR-634-1
--------------------
Before JOLLY, DAVIS, and JONES, Circuit Judges.
PER CURIAM:*
Llewellyn Okeith Pistole appeals his sentence following his
guilty plea to one count of bank robbery. It is undisputed that
the district court did not specifically inquire whether Pistole
read the presentence report (“PSR”) and discussed it with his
counsel, and that no “reasonable inference” can be drawn that the
court verified that Pistole had read and discussed the PSR. See
FED. R. CRIM. P. 32(c)(3)(A); United States v. Esparza-Gonzales,
268 F.3d 272, 274 (5th Cir. 2001), cert. denied, 122 S. Ct. 1547

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No. 02-20077
-2-
(2002). Pistole does not contend that he did not read the PSR,
only that the court’s failure to ascertain that he read it caused
him prejudice. Neither does he challenge the contents of the
PSR.
We review Pistole’s claim only for “plain error” because
Pistole did not object to the omission in the district court.
Id. To reverse under plain-error review, the error must be clear
and obvious, it must affect the defendant’s substantial rights,
and a failure to correct the error must seriously affect the
fairness, integrity, or public reputation of the judicial
proceedings. See United States v. Calverley, 37 F.3d 160, 162
(5th Cir. 1994).
There is no indication that verification that Pistole
himself read the PSR would have made the slightest difference in
his sentence. See United States v. Ravitch, 128 F.3d 865, 869
(5th Cir. 1997) (noting that, under plain-error review, it is
pointless to remand if the district court could have imposed the
same sentence). In sum, this appeal is frivolous and is
therefore DISMISSED.
DISMISSED AS FRIVOLOUS.

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