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United States v. Tovar-Olaiz, 01-50346 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 01-50346 Visitors: 31
Filed: Dec. 12, 2001
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50346 Conference Calendar UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN FRANCISCO TOVAR-OLAIZ, also known as Juan Francisco Tovar- Olias, Defendant-Appellant. _ Consolidated with No. 01-50348 _ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus JUAN FRANCISCO TOVAR-OLAIZ, also known as Juan Francisco Tovar-Olias, also known as Jorge Hernandez-Guevara, Defendant-Appellant. - Appeals from the United States District Co
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT


                            No. 01-50346
                        Conference Calendar


UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JUAN FRANCISCO TOVAR-OLAIZ, also known as Juan Francisco Tovar-
Olias,

                                         Defendant-Appellant.

                       ____________________

                         Consolidated with
                            No. 01-50348
                       _____________________

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

versus

JUAN FRANCISCO TOVAR-OLAIZ,
also known as Juan Francisco Tovar-Olias,
also known as Jorge Hernandez-Guevara,

                                         Defendant-Appellant.

                       --------------------
          Appeals from the United States District Court
                for the Western District of Texas
                       USDC No. 97-CR-501-1
                       --------------------
                         December 11, 2001
Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

     In separate but related appeals Juan Francisco Tovar-Olaiz

appeals (1) his sentence for conspiracy with intent to distribute


     *
        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that this opinion should not be published and is not precedent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.
                           No. 01-50346
                           c/w 01-50348
                                -2-
marijuana and (2) the revocation of his supervised release.

Tovar-Olaiz contends that the district court failed to verify

that he had read his presentence report (“PSR”) and discussed it

with counsel prior to imposing sentence, as required by Fed.

R. Crim. P. 32(c)(3)(A).     He concedes that he did not object in

the court below but contends that under the language of the rule

and due to policy considerations remand for resentencing is

required.

      We agree with Tovar-Olaiz that the district court failed to

comply with Rule 32(c)(3)(A).    However, because Tovar-Olaiz did

not raise the issue of noncompliance in the district court, we

will correct the error only if it was plain and affected his

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 (articulating the plain error standard of

review).    Tovar-Olaiz concedes that erroneous information in the

PSR regarding his children was corrected before the district

court, and he identifies no remaining inaccuracies in the PSR.

Tovar-Olaiz does not show that he was prejudiced at sentencing or

in the revocation of his supervised release, and his speculations

regarding future prejudice resulting from unspecified errors are

insufficient to meet his burden to demonstrate plain error.     See

id. We therefore
AFFIRM.

Source:  CourtListener

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