United States v. Orduna-Alvarado

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Summary Calendar
No. 00-51091
USDC No. DR-00-229-ALL-FB
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ANGEL GONZALEZ-GALLEGOS,
Defendant - Appellant;
______________________
Consolidated with
No. 00-51198
USDC No. DR-00-CR-383-ALL
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MARCELINO CENTENO-HERRERA,
Defendant - Appellant;
_____________________
Consolidated with
No. 00-51323
USDC No. DR-00-CR-220-1
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ALBINO OCHOA-DE LA FUENTE,
Defendant - Appellant;
__________________________
________________
Consolidated with
No. 01-50177
USDC No. EP-00-CR-1635-ALL-H
__________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SERGIO ORDUNA-ALVARADO, also known as Raul Ontiveros,
Defendant - Appellant.
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Appeals from the United States District Court
for the Western District of Texas
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October 10, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges:
PER CURIAM:*
Fed. R. Crim. P. 32(c)(3)(A) provides, among other
things, that before imposing sentence in a criminal case, a
district court must “verify that the defendant and defendant’s
counsel have read and discussed” the defendant’s presentence
report. The appellants in these consolidated cases argue that as
to alleged violations of this requirement to which a defendant
failed to object, this court should not review for plain error or
harmless error, but should automatically remand for resentencing.
United Stats v. Esparza-Gonzalez, __ F.3d __, 2001 WL 1135317 (5th
Cir. Sep. 26, 2001), rejects their argument and concludes that this
*
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that this opinion should not be published and is not precedent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.
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court reviews for plain error an alleged violation of the
verification requirement to which the defendant failed to object
below.
The appellants did not object in the district court to
the verification requirement violations that they now allege
occurred. As in Esparza-Gonzalez, none of the appellants argues
that he was prejudiced by any such violation or even that he did
not read or discuss with his counsel his presentence report.
Appellants have not demonstrated plain error. See id.The appellants’ other arguments are foreclosed by circuit
precedent and, as they acknowledge, are raised only in order to
preserve them for Supreme Court review. The judgments are
AFFIRMED. We commend counsel for their lucidly argued briefs.
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