Unpublished Disposition, 872 F.2d 430 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 430 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Serafin ALFONSO, Defendant-Appellant.

No. 87-6261.

United States Court of Appeals, Ninth Circuit.

Submitted*  Feb. 15, 1989.Decided March 9, 1989.

Before WALLACE, TANG and SCHROEDER, Circuit Judges.


Alfonso appeals from the denial by the district court of his petition to vacate, set aside or correct his sentence. The district court had jurisdiction pursuant to 28 U.S.C. § 2255 and we have jurisdiction of the appeal also based on 28 U.S.C. § 2255. We affirm.

"The range of claims which may be raised in a Sec. 2255 motion is narrow." United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). "Where the moving party does not allege a lack of jurisdiction or constitutional error, there is no basis for collateral relief under Sec. 2255 unless the claimed error constituted a fundamental defect which inherently results in a 'complete miscarriage of justice.' " Id. at 972-73.

A conviction based on a guilty plea is not subject to collateral attack when all that can be shown is a formal violation of Rule 11. United States v. Timmreck, 441 U.S. 780 (1979). Even assuming, arguendo, that the asserted violation of Rule 11 provides grounds for relief from collateral attack, we find no error. Alfonso contends that he was entitled to relief because he was not advised that he could not withdraw his guilty plea if he is disappointed in the sentence pronounced. He was advised, however, that the district judge was not bound by any agreement as to the extent of his sentence.

Alfonso's plea fully complied with Rule 11. Under oath, Alfonso responded to questions by the district judge which demonstrates a factual basis for the plea. There was no violation of Alfonso's right to effective assistance of counsel.


Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4