IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-50100 Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

EDUARDO TAPIA-RODRIGUEZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. DR-00-CR-464-1-WWJ -------------------- February 21, 2002

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Eduardo Tapia-Rodriguez (“Tapia”) appeals the sentencing

following his guilty plea for illegal reentry into the United

States following deportation in violation of

(a)

and (b)(2). Tapia argues that he is entitled to resentencing

because the district court failed to verify whether his attorney

reviewed and discussed the presentence report (PSR) with him

prior to sentencing in violation of Federal Rule of Criminal

Procedure 32(c)(3)(A).

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 01-50100 -2-

We agree that the district court failed to comply with Rule

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

noncompliance in the district court, we will correct the error

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

See United States v. Esparza-Gonzalez,

(5th

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

(1993).

Tapia 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, Tapia has not demonstrated

that he was prejudiced by the court’s failure to comply with Rule

32(c)(3)(A). Because Tapia has failed to carry his burden of

demonstrating prejudice, he has not established plain error. See

Esparza-Gonzalez,

. Tapia’s conviction and

sentence are AFFIRMED.