*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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-50321

Summary Calendar

 

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

LUIS HERNANDEZ-CASTANON,

Defendant-Appellant.

_________________________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. EP-99-CR-1653-1-DB

_________________________________________

December 1, 2000

Before POLITZ, JOLLY, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Luis Hernandez-Castanon appealsthe sentence imposed following his guilty plea

to a charge of violating 8 U.S.C. § 1326. His motion for leave to supplement the record

is GRANTED.

Hernandez-Castanon asserts that the district court did not verify, under Fed. R.

Crim. P. 32(c)(3)(A), a reading of the presentence report and its discussion with
1United States v. Vasquez, 216 F.3d 456 (5th Cir. 2000), petition for cert. filed, ___

U.S.L.W. ___ (U.S. Sept. 25, 2000) (No. 00-6282).

2United States v. Calverley, 37 F.3d 160 (5th Cir. 1994) (en banc) (citing United States v.

Olano, 507 U.S. 725 (1993)). 

3Olano, 507 U.S. at 736. 

4120 S. Ct. 2348, 2362-63 (2000)

2

counsel. He further asserts that compliance with Rule 32(c)(3)(A) cannot be inferred

from the record, and that we should not apply a harmless error analysis. He contends

that a remand is required.

Hernandez-Castanon objected to the PSRand moved for a downward departure.

The district court discussed these issues atsentencing. He did not raise the issue of the

Rule 32(c)(3)(A) omission in the district court. He does not claim that he did not read

the PSR or discuss it with his attorney. Accordingly, we review for plain error only.1

Under Fed. R. Crim. P. 52(b), we may act on forfeited errors only when the

appellant shows a clear and obvious error affecting substantial rights.2 If such be

shown, the decision to correct the forfeited error is within our sound discretion. We

will decline to exercise that discretion unless the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.3

Because Hernandez-Castanon does not allege that he did not read the PSR and

did not discuss it with his attorney, he does not allege prejudice. Accordingly, no plain

error has been established.

Hernandez-Castanon challenges hissentence as a violation of due process, citing

Apprendi v. New Jersey.

4

 He contends that the indictment did not allege the prior

aggravated felony that was used to increase his punishment and that 8 U.S.C.
5523 U.S. 224, 235 (1998)

6120 S. Ct. at 2362-63; United States v. Doggett, ___ F.3d ___, 2000 WL 1481160 *5 (5

Cir. Oct. 6, 2000) (stating that the Supreme Court in Apprendi did not overrule its decision in

Almendarez-Torres). 

3

§ 1326(b)(2) is an unconstitutionalsentencing enhancement. He acknowledges that his

position isforeclosed by the holding in Almendarez-Torres v. United States;

5

however,

he wishes to preserve the issue for further review.

The Apprendi Court did not overrule Almendarez-Torres.

6 Accordingly,

Hernandez-Castanon’s sentence is AFFIRMED.