     Case: 19-10051      Document: 00515271642         Page: 1    Date Filed: 01/14/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT   United States Court of Appeals
                                                     Fifth Circuit

                                                                              FILED
                                                                         January 14, 2020
                                      No. 19-10051
                                                                           Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

EDGAR BECERRA-SANDOVAL, also known as Edgar Beceria-Sandoval,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 1:18-CR-46-1


Before HIGGINBOTHAM, STEWART, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Edgar Becerra-Sandoval pleaded guilty to illegal reentry after
deportation and was sentenced to 71 months of imprisonment and three years
of supervised release. Becerra-Sandoval argues on appeal that the district
court failed to comply with Federal Rule of Criminal Procedure 32(i)(1)(A), and
thus violated his right to due process, when it failed to sua sponte continue the
sentencing hearing after he stated in open court that he had not reviewed the
presentence report (PSR) with defense counsel. Instead, the district judge


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 19-10051      Document: 00515271642        Page: 2     Date Filed: 01/14/2020


                                     No. 19-10051

relied on defense counsel’s countervailing statements that he had twice
reviewed the PSR with Becerra-Sandoval.
      Citing the dissent to the Sixth Circuit’s decision in United States v. Tate,
516 F.3d 459, 472–73 (6th Cir. 2008) (Moore, J., dissenting), involving a similar
factual scenario, Becerra-Sandoval argues that he preserved this issue for
review when he informed the district court at sentencing that he had not
reviewed the PSR. However, his statements at sentencing were not sufficiently
specific to preserve his argument on appeal that the district court failed to
comply with Rule 32(i)(1)(A) by not sua sponte recessing the sentencing
hearing. See United States v. Nesmith, 866 F.3d 677, 679 (5th Cir. 2017);
United States v. Chavez-Hernandez, 671 F.3d 494, 497 (5th Cir. 2012).
Accordingly, plain-error review applies.            To show plain error, Becerra-
Sandoval must show a forfeited error that is clear or obvious and that affects
his substantial rights. Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, this court has the discretion to correct the error, and
that discretion “ought to be exercised only if the error seriously affects the
fairness, integrity or public reputation of judicial proceedings.” Id. (internal
quotation marks, brackets, and citation omitted).
      Becerra-Sandoval has not provided any controlling authority showing
that differing responses from the defendant and defense counsel regarding
review of the PSR require the district court to sua sponte recess the sentencing
hearing to allow the defendant to review the PSR, rather than making a
credibility determination. 1 Cf. United States v. Esparza-Gonzalez, 268 F.3d
272, 274 (5th Cir. 2001) (declining to “interpret Rule 32 as creating an absolute
requirement that the district court specifically ask a defendant whether he has


      1  Nevertheless, we note that when confronted with conflicting responses, allowing a
brief recess would avoid unnecessary challenges and facilitate unquestioned fairness in the
sentencing procedure.


                                            2
     Case: 19-10051       Document: 00515271642          Page: 3     Date Filed: 01/14/2020


                                       No. 19-10051

read the [PSR]” and instead allows the district court to “draw reasonable
inferences from court documents, the defendant’s statements, and counsel’s
statements to determine whether the defendant has been given an opportunity
to read the PSR with his counsel”). Accordingly, he has not demonstrated any
error that was clear or obvious. See Puckett, 556 U.S. at 135; United States v.
Garcia-Rodriguez, 415 F.3d 452, 455–56 (5th Cir. 2005).
       Moreover, despite having ample time between the sentencing hearing
and the filing of his appellate brief, he does not provide any facts or arguments
explaining what objections he would have made if given the opportunity to
review the PSR or how those objections would have affected the outcome of the
district court proceedings. Accordingly, he has not shown that his substantial
rights were affected by the district court’s failure to sua sponte recess the case.
See Puckett, 556 U.S. at 135.
       In light of the foregoing, Becerra-Sandoval has not demonstrated that
the district court committed plain error by failing to sua sponte recess the
sentencing hearing.        See id.    Accordingly, the district court’s judgment is
AFFIRMED. 2


       2 Even if we were to conclude that Becerra-Sandoval sufficiently articulated his
objection at sentencing and assume that the district court failed to adequately comply with
Rule 32(i)(1)(A), we would reach the same result because the error was harmless in this case.
“[A]ny error, defect, irregularity, or variance that does not affect substantial rights” is
harmless and “must be disregarded.” Fed. R. Crim. P. 52(a); see also Esparza-Gonzalez, 268
F.3d at 274 (recognizing that noncompliance with the verification requirement of Rule 32
does not require automatic reversal absent a showing of prejudice); United States v. Soltero,
510 F.3d 858, 863 (9th Cir. 2007) (holding “if it is clear that no prejudice resulted from a
court’s failure to comply with the letter of Rule 32(i)(1)(A), the error is harmless, and
resentencing is unnecessary”). The substantial-rights analysis is the same under both
harmless error and plain error review, with the “important” distinction that the government
bears the burden of proving harmless error. See United States v. Olano, 507 U.S. 725, 734–
35 (1993). Given the absence of any apparent errors in the PSR—either reflected in the
record or raised in the appellant’s brief—that would have impacted the sentence, we find that
the government has met its burden of showing that Becerra-Sandoval was not prejudiced by
the sentencing judge’s alleged failure to verify that he had an opportunity to read and discuss
the PSR with his attorney. As the government emphasizes, Becerra-Sandoval has not


                                              3
     Case: 19-10051       Document: 00515271642          Page: 4     Date Filed: 01/14/2020




identified any factual inaccuracies in the PSR that he was prevented from disputing, nor does
he allege that a disputed fact or legal conclusion, if successfully challenged, would have
resulted in him receiving a lesser sentence. A brief recess would not have changed the district
court’s sentence that it explicitly imposed to address the objectives of punishment and
deterrence. Thus, because Becerra-Sandoval’s substantial rights were not affected, any
violation of Rule 32(i)(1)(A) was harmless and does not warrant resentencing. See United
States v. Strother, 387 F. App’x 508, 512 (5th Cir. 2010); United States v. Sarabia-Villanta,
234 F.3d 706, 706 (5th Cir. 2000); United States v. Maldonado, 58 F.3d 637 (5th Cir. 1995).
