[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
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ELEVENTH CIRCUIT
MAY 03, 2001
No. 97-5580 THOMAS K. KAHN
Non-Argument Calendar CLERK
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D. C. Docket No. 97-08040-CR-WDF
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EFREN GONZALEZ BEJARANO,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(May 3, 2001)
ON PETITION FOR REHEARING
Before ANDERSON, Chief Judge, WILSON and COX, Circuit Judges.
PER CURIAM:
The United States's Petition for Rehearing is GRANTED. The opinion
issued in this case on January 8, 2001, is vacated and withdrawn, and this opinion
is substituted in lieu thereof. Another panel of this Court, United States v. Roberts,
No. 00-10983 (11th Cir. Dec. 13, 2000) (unpub.), addressed this precise issue
raised by Bejarano in this appeal and rejected Bejarano's argument. We conclude
that the instant case is indistinguishable from Roberts. We find Roberts persuasive
and follow its lead.
I. Background
On June 25, 1997, Efren Gonzalez Bejarano entered a guilty plea to one
count of possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§ 841(a)(1), pursuant to a plea agreement. The plea agreement stated in relevant
part:
The defendant also understands and acknowledges that the court must
impose a minimum term of imprisonment of ten (10) years and may
impose a statutory maximum term of imprisonment of up to life,
followed by a term of supervised release. In addition to a term of
imprisonment and supervised release, the court may impose a fine of
up to $4 million.
At Bejarano's plea colloquy, the district court stated:
You do understand that the statutory maximum that the Court could
impose is a maximum of up to life with a minimum term of ten years
followed by [a] term of supervised release and a fine of up to
$4,000,000. That is provided for by statute. Do you understand that?
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Bejarano responded, “Yes.”
The district court did not inform Bejarano that there was a mandatory
minimum term of supervised release of five years; however, Bejarano's initial
Presentence Investigation Report (PSI) noted that a five-year term of supervised
release was required by statute. Although Bejarano filed numerous objections to
the PSI, he did not dispute the statutory requirement of five years of supervised
release. A revised PSI also noted the mandatory five-year supervised release
period. At the sentencing hearing, Bejarano did not object to the five-year
supervised release period, and Bejarano was sentenced to 120 months'
imprisonment and five years of supervised release.
II. Discussion
On appeal, Bejarano argues that the district court’s omission of the statutory
minimum term of supervised release violated Fed. R. Crim. P. 11 and that his
conviction and sentence should be vacated in order to give him the opportunity to
withdraw his guilty plea.
Because Bejarano did not object to the Rule 11 colloquy below, we review
the district court’s failure to inform Bejarano of the mandatory minimum term of
supervised release for plain error. See United States v. Mosley,
173 F.3d 1318,
1322 (11th Cir. 1999). “Plain error is clear or obvious and affects substantial
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rights; the defendant bears the burden of persuasion with respect to prejudice.”
Id.
at 1322 n. 3 (internal quotation marks and citation omitted).
In a case presenting similar facts, United States v. Roberts, No. 00-10983,
(11th Cir. Dec. 13, 2000) (unpub.), another panel of this Court held that the district
court’s failure to advise Roberts of the minimum mandatory term of supervised
release was not plain error, because Roberts’ substantial rights were not affected.
The Court noted that Roberts’ plea agreement provided that he understood and
agreed that his term of imprisonment would be “followed by a term of supervised
release” and that the district court had advised Roberts at his plea colloquy that he
would be subject to a term of imprisonment followed by a term of supervised
release. The Court also noted that Roberts had been advised of the mandatory
period of supervised release in his PSI, and he failed to object to the PSI at his
sentencing hearing. The Court held that “Roberts’ own conduct indicate[d] that his
substantial rights were not harmed by any potential oversight by the district court
with respect to its advice to Roberts on a specific term of supervised release.” In
support of this holding, Roberts cited United States v. Carey,
884 F.2d 547, 549
(11th Cir. 1989), in which this Court held that the defendant’s substantial rights
were not affected where the district court failed to inform him during the plea
colloquy of the potential period of supervised release under the Sentencing
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Guidelines, because the district court advised the defendant at sentencing, as the
PSI had informed him previously, that the guidelines prescribed a mandatory term
of supervised release, and the defendant did not object. We find the analysis of
Roberts persuasive.1
Both the written plea agreement and the district court’s statement during the
plea colloquy informed Bejarano that the court could impose a sentence of
imprisonment up to a maximum of life, that there was a mandatory minimum
sentence of ten years’ imprisonment, and that his sentence would include a period
of supervised release. Furthermore, Bejarano’s PSI stated that a five-year period of
supervised release was required by statute, and Bejarano failed to object to the PSI
at sentencing. Because Bejarano’s conduct indicates that his substantial rights
were not affected by the district court’s failure to inform him at his plea colloquy
of the specific term of supervised release required by statute, we hold that Bejarano
1
We also note that every circuit that has addressed this issue has held that a district
court’s failure to inform a defendant that he faces a specific term of supervised release, or to
inform the defendant of the effect of supervised release on his sentence, is harmless error in a
situation like this one, where the defendant’s actual sentence, including the term of
imprisonment and period of supervised release, is well below the sentence that the defendant was
informed by the district court that he faced. See United States v. Elkins,
176 F.3d 1016 (7th Cir.
1999); United States v. Andrades,
169 F.3d 131 (2d Cir. 1999); United States v. Fuentes-
Mendoza,
56 F.3d 1113, 1114 (9th Cir. 1995); United States v. Raineri,
42 F.3d 36 (1st Cir.
1994); United States v. Good,
25 F.3d 218 (4th Cir. 1994); United States v. Syal,
963 F.2d 900
(6th Cir. 1992); United States v. Bachynsky,
934 F.2d 1349 (5th Cir. 1991) (en banc), modified
by, United States v. Johnson,
1 F.3d 296 (5th Cir. 1993) (en banc); United States v. Barry,
895
F.2d 702 (10th Cir. 1990); United States v. McGeehan,
824 F.2d 677 (8th Cir. 1987).
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is not entitled to withdraw his guilty plea, and we affirm his conviction and
sentence.
AFFIRMED.
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