USA vs. Sanchez-Munoz, (5th Cir. 2001)
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 01-50228 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ELOY JULIAN CARDENAS BACA, Defendant-Appellant. Consolidated with 01-50229 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JOSE OBED ESPARZA-GONZALEZ, Defendant-Appellant, Consolidated with No. 01-50237 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus VICTOR SANCHEZ-MUNOZ, Defendant-Appellant. Appeal from the United States District Court for the Western District of Texas USDC Nos. EP-00-CR-1891-ALL-H, 00-CR-1497-ALL & 00-CR-607-ALL December 12, 2001 * Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM: * Elroy Julian Cardenas Baca, Jose Obed Esparza-Gonzalez, and Victor Sanchez-Munoz all argue that they are entitled to be resentenced because the district court failed to verify that their counsel had read and discussed their presentence reports (PSRs) with them prior to sentencing in violation of Fed. R.
Crim.
P. 32(c)(3)(A). We agree that the district court failed to comply with Rule 32(c)(3)(A) in each of the appellantsÂ’ cases. However, because the appellants did not raise the issue of noncompliance in the district court, the court will correct the error only if it was plain and affected the appellantsÂ’ substantial rights. See United States v. Esparza-Gonzalez , 268 F.3d 272, 274 (5th Cir. 2001); see also United States v. Olano , 507 U.S. 725, 732-34 (1993). The appellants failed to object to the Rule 32(c)(3)(A) violation in the district court. The appellants have not asserted that they did not review or discuss their PSRs with their defense counsel, but rely upon their respective recordsÂ’ failure to indicate that they had reviewed and discussed the PSR with counsel. Thus, the appellants have not asserted that they were prejudiced by the courtÂ’s Rule 32(c)(3)(A) oversight.
Because the appellants have failed to carry their burden of demonstrating prejudice, i.e ., that their substantial rights were affected, they have not demonstrated plain error. See United States v. Vasquez , 216 F.3d at 456, 459 (5th Cir.), cert. denied ,
No. 01-50228 c/w Nos. 01-50229 & 01-50237
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This document cites
- U.S. Supreme Court - United States v. Olano, 507 U.S. 725 (1993)
- U.S. Court of Appeals for the Fifth Circuit - United States of America, Plaintiff - Appellee, v. Alfredo Esparza-Gonzalez, Also Known as Juan Valdez, Defendant - Appellant. United States of America, Plaintiff - Appellee, v. Jaime Gustavo Castillo-Tapia, Also Known as Victor Manuel Ochoa, Defendant - Appellant., 268 F.3d 272 (5th Cir. 2001)
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