Unpublished Disposition, 923 F.2d 863 (9th Cir. 1991)

MEMORANDUM^** 

Luis Delgado-Flores appeals his conviction, following a guilty plea, for illegally entering the United States as a previously deported alien, in violation of 8 U.S.C. § 1326. Delgado-Flores contends that the district court erred by accepting his plea without ensuring that he had a proper understanding of the consequences and that the plea is therefore void under Fed. R. Crim. P. 11. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

The voluntariness of a guilty plea is a question of law reviewed de novo. Marshall v. Loneberger, 459 U.S. 422, 431 (1983); United States v. Sanclemente-Bejarano, 861 F.2d 206, 208 (9th Cir. 1988).

Rule 11 requires that the court "address the defendant personally in open court and inform the defendant of, and determine that the defendant understands ... the maximum possible penalty provided by law" for the offense to which the defendant is pleading guilty. Fed. R. Crim. P. 11(c) (1). Rule 11 also provides that " [a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." Fed. R. Crim. P. 11(h). "Our analysis of harmless error under rule 11 has generally turned on whether the defendant knew before pleading guilty that he could be sentenced to a term as long as the one he eventually received." Sanclemente-Bejarano, 861 F.2d at 210.

Here, at the plea hearing, the district court informed Delgado-Flores that, " [t]he penalty involved would be a maximum of two years and/or a fine of $250,000.00, a period of supervised release for a period of one year." After being corrected by the Assistance United States Attorney, the district court stated:

I would advise you, sir, that I misspoke, and the maximum penalty could be as long as five years and/or a fine of $250,000.00 and a period of supervised release for three years....

Do you understand those to be the penalties involved, sir?

Delgado-Flores replied, "Yes." (ER 31-32).

Subsequently, the district court asked Delgado-Flores, "Do you have a clear understanding of both the charge against you and the consequences of your plea?" (ER 33). Delgado-Flores responded, "Did you say that I was going to be in for three years?" The district court replied, "No," but did not go on to restate the maximum penalty (ER 33). The district court explained the impact of the United States Sentencing Guidelines on Delgado-Flores' potential sentence, noting that Delgado-Flores could not withdraw his plea if he received a longer sentence than he expected. Delgado-Flores stated that he understood this (ER 36-37).

Delgado-Flores was represented by counsel. He claimed an education up through the third year of junior high school. He appeared to understand the questions posed to him by the judge and responded appropriately. Although Delgado-Flores may have thought initially that he was actually going to be sentenced to three years incarceration, he subsequently indicated that he understood that the length of his sentence would depend on the application of the Guidelines to his case.

The colloquy between the district court and Delgado-Flores sufficiently demonstrated Delgado-Flores' grasp of the possible consequences of the charge to which he pleaded guilty, and the district court properly accepted the guilty plea. See Sanclemente-Bejarano, 861 F.2d at 208. Even if Delgado-Flores erroneously believed that the maximum possible sentence which he might receive was three years incarceration rather than five, this error was harmless because his actual sentence, 24 months incarceration, is less than the three years. See Sanclemente-Bejarano, 861 F.2d at 210.

AFFIRMED.