Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Rafael Botello-Garcia pleaded guilty to one count of possession of more than 500 grams of cocaine with intent to distribute. Prior to his plea, both the district court and the Assistant U.S. Attorney informed Appellant the minimum sentence the court could imposed was five years' imprisonment and the maximum sentence was forty years. Appellant was further advised he would be subject to a mandatory special parole term of four years upon release.

The district court subsequently sentenced Appellant to six years' imprisonment. During sentencing, the district court erroneously stated that the Parole Commission would ultimately set the amount of time to be served and that this time would be four to five years. In fact, under the federal Sentencing Guidelines, which apply to this case, a defendant is required to serve the entire term of any sentence imposed, and there is no opportunity for parole.¹  Appellant claims the district court's misstatement at sentencing violated Rule 11, Fed. R. Crim. P., and worked unfairness upon him.

Appellant's assertion of a Rule 11 violation is meritless. Rule 11 applies to pleas, plea agreements, and a court's acceptance thereof. The district court scrupulously adhered to the requirements of Rule 11 at the plea allocution, specifically advising Appellant he would be required to serve the entire term of the sentence imposed. The district court's subsequent misstatement of the time Appellant would be required to serve occurred at sentencing, some two months after Appellant had entered his plea and after the court had accepted it. The misstatement, therefore, did not affect Appellant's plea and does not constitute a violation of Rule 11. Any error was harmless.

AFFIRMED.