United States v. Santana-Baltazar ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-40082
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICOLAS SANTANA-BALTAZAR,
Defendant-
Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. L-01-CR-753-ALL
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November 27, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Nicolas Santana-Baltazar (Santana) appeals his guilty-plea sentence upon his conviction of
illegally entering the United States for the second ti me, 8 U.S.C. § 1325(a). He argues that the
district court’s failure to determine that he and his counsel had read and discussed the presentence
report (PSR) was a violation of FED. R. CRIM. P. 32(c)(3)(A) which constituted plain error. We
AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Rule 32(c)(3)(A), FED. R. CRIM. P., provides that before imposing sentence, the district court
must "verify that the defendant and defendant’s counsel have read and discussed the presentence
report." Because Santana failed to raise the issue of noncompliance with Rule 32(c)(3)(A) in the
district court, we will correct the alleged error only if it was plain and affected Santana’s substantial
rights. See United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001), cert. denied,
122 S. Ct. 1547 (2002). Rule 32(c)(3)(A) does not, however, absolutely require that the district
court specifically ask a defendant whether he has read the PSR. Instead, we will draw reasonable
inferences from court documents, the defendant’s statements, and counsel’s statements to determine
whether the defendant has been given an opportunity to read and discuss the PSR with his counsel.
See id.The record do es not contain information from which the district court could reasonably have
inferred that Santana and his counsel had reviewed the PSR, although it shows that counsel did.
Significantly, Santana does not deny that he and counsel discussed the PSR; and he has not attempted
to show that he was prejudiced by the district court’s Rule 32 omission. Consequently, Santana is
not entitled to relief on the ground of plain error. See Esparza-Gonzalez, 268 F.3d at 274.
Santana contends that a Rule 32(c)(3)(A) violation is reversible error per se, without the need
for a showing that the defendant was prejudiced thereby. He acknowledges that his contention is
foreclosed by Esparza-Gonzalez, but he wishes to preserve the issue for Supreme Court review in
light of United States v. Mitchell, 243 F.3d 953 (6th Cir. 2001).
The judgment of the district court is AFFIRMED.
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