United States v. Tobias-Perez ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40158
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SALVADOR TOBIAS-PEREZ,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
USDC No. B-00-CR-384-1
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December 27, 2001
Before DAVIS, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:*
Salvador Tobias-Perez pleaded guilty to count 2 of an
indictment charging him for possession with intent to distribute
marijuana. Tobias has appealed his conviction and sentence.
Tobias contends that his guilty plea should be vacated
because he was advised erroneously at the rearraignment that he
was subject to a four-year period of supervised release, when in
fact he was subject to a four-to-five-year period of supervised
release. We review this question for harmless error. See United
States v. Johnson, 1 F.3d 296, 302 (5th Cir. 1993) (en banc); see
also Fed. R. Crim. P. 11(h). To determine whether flawed advice
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 01-40158
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regarding supervised release is harmless, this court typically
compares the statutory maximum sentence to the "worst case"
scenario that a defendant could face if supervised release were
revoked on the last day of its term. See United States v.
Hekimain, 975 F.2d 1098, 1101-03 (5th Cir. 1992) (citing United
States v. Bachynsky, 934 F.2d 1349, 1359-60 (5th Cir. 1991) (en
banc)); see also United States v. Cuevas-Andrade, 232 F.3d 440,
444 (5th Cir. 2000), cert. denied, 121 S. Ct. 1748 (2001).
Because Tobias understood that he could have received a maximum
term of imprisonment of 40 years, and because that term exceeds
both his maximum aggregate period of incarceration and his "worst
case" scenario, the district court's noncompliance with Fed. R.
Crim. P. 11 was harmless error. See Cuevas-Andrade, 232 F.3d at
444.
Tobias contends that the district court erred in adjusting
his offense level under U.S.S.G. § 3C1.2 for reckless
endangerment. Tobias argues that there was no evidence that he
endangered other motorists in attempting to flee from Border
Patrol agents. The probation officer's finding as to reckless
endangerment was based upon an agent's statement that Tobias had
attempted to evade arrest by fleeing in his vehicle and that
there were other cars which Tobias must have passed at a high
rate of speed. Tobias offered no evidence in rebuttal. The
probation officer's factual findings bore sufficient indicia of
reliability to support their probable accuracy. See United
States v. Young, 981 F.2d 180, 185 (5th Cir. 1992). The district
court's implicit reliance on these findings in overruling Tobias'
No. 01-40158
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objection to the U.S.S.G. § 3C1.2 enhancement was not clearly
erroneous. See United States v. Fitzhugh, 984 F.2d 143, 146 (5th
Cir. 1993) (standard of review). The judgment is
AFFIRMED.