Unpublished Disposition, 930 F.2d 26 (9th Cir. 1991)

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US Court of Appeals for the Ninth Circuit - 930 F.2d 26 (9th Cir. 1991)

Terry Lee CONNOR, Plaintiff-Appellant,v.UNITED STATES of America, Defendant-Appellee.

No. 90-35433.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.* Decided April 1, 1991.

Before K.K. HALL, DAVID R. THOMPSON, and RYMER, Circuit Judges.


Terry Lee Connor, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion to vacate his sentence.1  Connor contends (1) his guilty plea was involuntary because he did not understand the parole consequences of his guilty plea and (2) the district court violated Fed. R. Crim. P. 11 by failing to inform him of the parole consequences. We review de novo the district court's denial of a section 2255 motion. United States v. Grewal, 825 F.2d 220, 222 (9th Cir. 1987). Because Connor did not pursue his Rule 11 claim on direct appeal, he must establish that any error was a fundamental defect which inherently results in a complete miscarriage of justice or a violation of due process. United States v. Timreek, 441 U.S. 780, 783-85 (1979). We affirm.

Connor pleaded guilty to armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (Count I) and taking hostages during the bank robbery in violation of 18 U.S.C. § 2113(e) (Count IV). The district court sentenced Connor to a 99 year term of imprisonment on Counts I and IV and found that the ends of justice and the best interests of the public required Connor to serve a minimum term of 33 years before parole eligibility.2 

Connor concedes that he understood that he faced a maximum sentence of life imprisonment, but argues that he thought he would serve from 10 to 30 years on a life sentence before he was eligible for parole. This argument lacks merit because it was within the district court's discretion to sentence him to a minimum term of 33 years and because parole eligibility is only a collateral consequence of a guilty plea.

For pre-Guidelines offenses, parole eligibility is governed by 18 U.S.C. § 4205. Section 4205(a) provides that a federal prisoner sentenced to a term of more than one year is eligible for release on parole after serving either one-third of the prescribed sentence or ten years if the sentence is for a term over 30 years or for life, except to the extent that the law provides otherwise. Section 4205(b) (1) provides that if the ends of justice and the best interests of the public require, the sentencing court may impose a minimum term for parole eligibility which may not exceed "one-third of the maximum sentence imposed by the court." See United States v. Kinslow, 860 F.2d 963, 969 (9th Cir. 1988), cert. denied, 110 S. Ct. 96 (1989).

Under section 4205, a person sentenced to life imprisonment must become eligible for parole no later than ten years after the commencement of incarceration. Id. Nevertheless, section 4205(a) does not place a ten year ceiling on the sentencing court's authority under section 4205(b) (1) to set a minimum term before parole eligibility when the defendant has been sentenced to a term of years so long as the minimum term does not exceed one-third of the maximum sentence imposed by the court. Id.; see United States v. Gwaltney, 790 F.2d 1378, 1388-89 (9th Cir. 1986) (district court did not exceed authority by providing that a defendant had to serve 30 years of his 90 year sentence before becoming eligible for parole), cert. denied, 479 U.S.1987).

Thus, the district court properly sentenced Connor to a minimum term of 33 years. Moreover, although a defendant must understand the effect of any statutory mandatory parole term, neither Rule 11 nor the Constitution require a trial court to notify the defendant of parole eligibility before accepting his guilty plea. Hill v. Lockhart, 474 U.S. 52, 56 (1985) (parole eligibility is collateral consequence of guilty plea); United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir. 1988) (per curiam) (Rule 11); cf. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986) (statutory mandatory parole term is direct consequence of guilty plea), cert. denied, 484 U.S. 870 (1987). Accordingly, the district court properly denied Connor's section 2255 motion.



The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


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 Circuit R. 36-3


Because Connor committed his crimes before November 1, 1987, the effective date of the Sentencing Reform Act of 1984, the Sentencing Guidelines do not apply


Connor also pleaded guilty to using a firearm in the course of the bank robbery in violation of 18 U.S.C. § 924(c) (Count II) and obstructing interstate commerce in furtherance of the bank robbery in violation of 19 U.S.C. § 1951 (Count III). The district court sentenced Connor to (1) 5 years imprisonment on Count II, to run consecutively to the 99 year term imposed on Counts I and IV, and (2) 20 years imprisonment on Count IV, to run consecutively to the prior terms. Connor does not dispute these sentences