                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                            No. 00-50292
                          Summary Calendar



UNITED STATES OF AMERICA,

                                           Plaintiff-Appellee,

versus

JOSE HERNANDEZ-RODRIGUEZ,

                                           Defendant-Appellant.

                         --------------------
            Appeal from the United States District Court
                  for the Western District of Texas
                    USDC No. DR-99-CR-611-ALL-WWJ
                         --------------------
                           December 1, 2000

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

     Jose Hernandez-Rodriguez (Hernandez) appeals his guilty-plea

conviction and sentence for being an alien found illegally in the

United States subsequent to deportation.     See 8 U.S.C. § 1326(a),

(b)(2).

     Hernandez argues that the district court erred, pursuant to

Fed. R. Crim. P. 32(c)(3)(A), at sentencing by failing to inquire

whether Hernandez and his counsel had read the presentence report

(PSR).    He concedes that the record supports the inference that

defense counsel had reviewed the PSR.    However, he asserts that

     *
        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that this opinion should not be published and is not precedent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. 00-50292
                                 -2-
nothing in the record supports a similar inference about

Hernandez’s having reviewed the PSR.   He contends that the error

is not subject to harmless-error analysis, and therefore, his

sentence should be vacated and the case remanded for

resentencing.

     Because Hernandez did not raise the issue of noncompliance

with Rule 32(c)(3)(A) in the district court, we review only for

plain error.    See United States v. Vasquez, 216 F.3d 456, 458-59;

United States v. Stevens, 223 F.3d 239, 242 (3d Cir. 2000).
Although Hernandez has demonstrated that the district court’s

oversight at sentencing amounted to Rule 32(c)(3)(A) error, he

fails in his burden to demonstrate that the error affected his

substantial rights.   See United v. Calverley, 37 F.3d 160, 162-64

(5th Cir. 1994) (en banc); see also United States v. Olano, 507

U.S. 725, 734 (1993) (explaining that the burden resides with the

defendant to demonstrate that substantial rights were affected).

Hernandez does not contend that he did not read or discuss the

PSR with defense counsel.   He fails to assert any prejudice

ensuing from the court’s Rule 32(c)(3)(A) oversight.   Therefore,

Hernandez fails to establish plain error.    See Vasquez, 216 F.3d

at 459; Stevens, 223 F.3d at 243-46.

     Hernandez also argues that, pursuant to Apprendi v. New

Jersey, 120 S. Ct. 2348, 2362-63 (2000), his 71-month sentence

exceeds the two-year statutory maximum because his prior

aggravated felony was not alleged in the indictment and because

§ 1326(b)(2) is an unconstitutional sentencing enhancement.    He

acknowledges that his argument is defeated by Almendarez-Torres
                          No. 00-50292
                               -3-
v. United States, 523 U.S. 224, 226-27 (1998), but he notes that

he is attempting to preserve the issue for Supreme Court review.

We are compelled to follow controlling Supreme Court law.

Accordingly, Hernandez’s argument is without merit.   See United

States v. Dabeit, ___ F.3d ___ (5th Cir. Oct. 30, 2000), 2000 WL

1634264 at *4.

     AFFIRMED.
