Unpublished Disposition, 887 F.2d 1089 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 887 F.2d 1089 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Rafael BOTELLO-GARCIA, Defendant-Appellant.

No. 88-3215.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 22, 1989.* Decided Oct. 2, 1989.

Before JAMES R. BROWNING, KOZINSKI and RYMER, Circuit Judges.


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.



The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


In recognition of its error, the district court, pursuant to Rule 35, Fed. R. Crim. P., reduced Appellant's sentence to five years. This circumstance, however, does not affect our analysis or the result of this appeal