                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                         _______________________

                              No. 00-50548
                            Summary Calendar
                    Civil Docket # SA-00-CR-74-1-EP
                        _______________________


UNITED STATES OF AMERICA,

                                                        Plaintiff-Appellee,

                                  versus

DANIEL AMAYA,

                                                     Defendant-Appellant.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
_________________________________________________________________
                           March 6, 2001

Before DAVIS, JONES, and DeMOSS, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

           Appellant Amaya, an illegal alien, was caught in the

middle of his attempt to hijack a truck at gunpoint.                During the

middle of this episode, the truck’s owner was shot in the chest.

Amaya was charged by federal authorities as being an illegal alien

in   possession    of   a   firearm,   in   violation     of   18    U.S.C.   §

922(g)(5)(A).     After pleading guilty without an agreement with the

      *
            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opinion should not be published and is not precedent except under the limited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.
government, Amaya was sentenced to 97 months imprisonment, plus

three years supervised release and a fine.                Still represented by

the federal public defender, he now appeals, contending that the

Rule 11 colloquy was insufficient and that as a result his plea

should    be     vacated   and     the     case   remanded   for   another    plea

proceeding.       Finding no reversible error, we affirm.

               The district court, no doubt inadvertently, omitted to

inform Amaya at the plea hearing that his sentence would be

determined according to the U.S. Sentencing Guidelines, but that

the court could depart from them in some circumstances.                 He also

failed to admonish Amaya of the effect of supervised release, i.e.,

that if Amaya violated its terms, he could be incarcerated for 24

months in addition to the maximum imprisonment sentence.                      The

latter error resulted in a one-month discrepancy between the 10-

year maximum statutory term to which Amaya knew he was exposed, and

the cumulative term (10 years, one month) he might receive if he

served 97 months, then commenced supervised release and violated

it, resulting in two years more incarceration.

               Under the circumstances of this case, we find that while

the court’s omissions technically violated Rule 11, they do not

result    in     reversible      error.1        First,   Amaya’s   sentence   was

      1
            In a recent en banc case, this court implied that appellate review
is for plain error only when a defendant has failed to raise a Rule 11 challenge
in the trial court. United States v. Marek, ____ F.3d ____ (5th Cir. Jan. 4,
2001), slip op. at 1455, 2001 WL at 10561, at *3. Other cases have disagreed on
whether to apply the plain error or harmless error standards. Compare U.S. v.
Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc) (harmless error), with United
States v. Ulloa, 94 F.3d 949, 955 (5th Cir. 1996). Even if we apply the less

                                            2
considerably shorter than the maximum statutory term.                 It is hard

to infer that a simple admonishment about the existence of the

Sentencing Guidelines would have influenced him one way or another

about the guilty plea.      Second, appellant does not claim on appeal

in regard to either of the court’s errors that he would have pled

differently or insisted on going to trial if he had known the

Sentencing Guidelines provide the range or if he had known about

the potential effect of a revocation of supervised release.                     We

cannot    draw   an   inference    of   reversible   error     when    even    the

defendant only speculates about harm and has not flatly asserted

that these omissions affected his decision to plead guilty.                    See

United States v. Williams, 120 F.3d 575, 578 (5th Cir. 1997)

(harmless error where the defendant did not claim he would have

pleaded differently absent the error.)            Third, the district court

did not fail to mention the term of supervised release, but only

its effect, which gives rise at most to the question whether

Amaya’s   substantial     rights    were    violated.      United     States    v.

Tuangmaneeratmun, 925 F.2d 797, 803-04 (5th Cir. 1991). Because of

the virtual congruity between the maximum statutory sentence and

the longest time that Amaya might actually serve, the court’s

omission did not affect appellant’s substantial rights.

            Fourth,    Amaya   pled     guilty   without   a   plea   agreement

constraining the ability to appeal his sentence, but he has not



demanding standard, this court’s errors were harmless.

                                        3
appealed the sentence.          Nevertheless, at the sentencing colloquy,

Amaya’s counsel admitted that the 97-month sentence would be

“appropriate,” although he argued for a downward departure or a

different sentencing calculation that would have yielded a sentence

half as long.      On its face, the concession of appropriateness is

inconsistent with a claim of harmful error in regard to the

validity   of    the   plea.      Finally,   examining    both   the   PSR   and

sentencing      hearing,   we    find   no   indication   that   the   court’s

omissions had any effect on the guilty plea.

           No reversible error has been shown.            AFFIRMED.




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