IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50355 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MANUEL HERNANDEZ-CASTORENA, ALSO KNOWN AS ANGEL ACEVEDO,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-00-CR-2089-ALL-DB -------------------- December 11, 2001 Before HIGGINBOTHAM, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Manuel Hernandez-Castorena (Hernandez) argues that he is

entitled to be resentenced because the district court failed to

verify that counsel had read and discussed his presentence report

(PSR) with him prior to sentencing as required by FED. R. CRIM. P.

32(c)(3)(A).

We agree that the district court failed to comply with Rule

32(c)(3)(A). However, because Hernandez did not raise the issue

of noncompliance in the district court, we will correct the error

only if it was plain and affected Hernandez’s substantial rights.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50355 -2-

See United States v. Esparza-Gonzalez,

(5th

Cir. 2001); see also United States v. Olano,

(1993).

Hernandez failed to object to the Rule 32(c)(3)(A) violation

in the district court. He does not argue that he did not review

or discuss his PSR with his attorney; instead, he relies on the

absence of any record evidence to indicate that he reviewed and

discussed the PSR with counsel. Thus, Hernandez has not

demonstrated that he was prejudiced by the court’s failure to

comply with Rule 32(c)(3)(A). Because Hernandez has failed to

carry his burden of demonstrating prejudice, he has not

established plain error. See United States v. Vasquez, 216 F.3d

at 456, 459 (5th Cir.), cert. denied,

(2000).

The district court’s failure to advise Hernandez that he had

the right to be assisted by counsel if he elected to proceed to a

jury trial was harmless.

AFFIRMED.