United States v. Gennady Kotlyarsky

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-15315 ELEVENTH CIRCUIT
Non-Argument Calendar AUGUST 31, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:10-cr-20315-AJ-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllllPlaintiff-Appellee,
versus
GENNADY KOTLYARSKY,
lllllllllllllllllllllllllllllllllllllllDefendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 31, 2011)
Before PRYOR, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Gennady Kotlyarsky appeals his conviction for possession with intent to
distribute oxycodone. 21 U.S.C. § 841(a)(1), (b)(1)(C). Kotlyarsky argues, for the
first time, that his plea of guilty is invalid because he was misinformed about the
length of his supervised release, Fed. R. Crim. P. 11(b)(1)(H)–(I). We affirm.
Any error did not prejudice Kotlyarsky’s substantial rights. Although the
district court failed to inform Kotlyarsky about a minimum term of six years of
supervised release, see 21 U.S.C. § 841(b)(1)(C), Kotlyarsky knew from his plea
agreement, change of plea hearing, and presentence investigation report that he
faced a term of “at least” three years of supervised release, see United States v.
Bejarano, 249 F.3d 1304, 1307 (11th Cir. 2001). Kotlyarsky failed either to object
when the district court sentenced him below the statutory minimum term to five
years of supervised release, see id. at 1306 n.1, or to move timely to withdraw his
plea of guilty, see United States v. Brown, 586 F.3d 1342, 1347 (11th Cir. 2009).
Furthermore, Kotlyarsky does not argue that, “but for the error, he would not have
entered [his] plea” of guilty. United States v. Dominguez Benitez, 542 U.S. 74,
83, 124 S. Ct. 2333, 2340 (2004).
We AFFIRM Kotlyarsky’s conviction.
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