Elawyers Elawyers
Washington| Change

United States v. Orduna-Alvarado, 01-50177 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-50177 Visitors: 15
Filed: Oct. 11, 2001
Latest Update: Mar. 02, 2020
Summary: 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 A
More
              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.

                        --------------------
           Appeals from the United States District Court
                 for the Western District of Texas
                        --------------------
                          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.

                                         2
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.




                                       3

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer