                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 11-1528
                                   ___________

United States of America,               *
                                        *
             Appellee,                  * Appeal from the United States
                                        * District Court for the
      v.                                * Western District of Missouri.
                                        *
Rodolfo Zambrano,                       *      [PUBLISHED]
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 14, 2011
                                Filed: December 1, 2011
                                 ___________

Before SMITH, BOWMAN, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

     Rodolfo Zambrano appeals from the order of the District Court1 denying his
motion to plead guilty. We affirm.

       Zambrano was charged by grand-jury indictment with possession with intent
to distribute more than fifty grams of cocaine. On April 20, 2010, he appeared in the
District Court to plead guilty, without a plea agreement, to the single count charged
in the indictment. After the court explained the statutory minimum and maximum

      1
        The Honorable Howard F. Sachs, United States District Judge for the Western
District of Missouri.
sentences as recited in the indictment, defense counsel pointed out that the crime
charged in the indictment had no statutory minimum and that the mandatory minimum
of five years that appeared in the indictment was for possession with intent to
distribute 500 or more grams of cocaine, not the fifty grams charged. The government
then asked to be permitted to amend the indictment, noting that the undisputed amount
of cocaine that was the basis for the charge was nearly 2000 grams. Counsel for
Zambrano objected, insisting that Zambrano be allowed to plead guilty to the fifty-
gram charge. The government then asked for a continuance to return to a grand jury
to seek a superseding indictment stating the correct amount of cocaine. The court
continued the hearing without ruling.

       On April 30, 2010, Zambrano filed a “Motion to Enter Guilty Plea,” which the
District Court denied on June 8. In the meantime, on May 4, a grand jury returned a
superseding indictment charging Zambrano with one count of possession with intent
to distribute 500 or more grams of cocaine. Zambrano entered a conditional guilty
plea on August 23, 2010, and the District Court later sentenced him to 120 months in
prison.

       For his sole issue on appeal, Zambrano contends that the District Court erred
in refusing to allow him to plead guilty to the original indictment. “A court may reject
a [guilty] plea in exercise of sound judicial discretion.” Santobello v. New York, 404
U.S. 257, 262 (1971). We review such a rejection for an abuse of that discretion. See
United States v. Michel-Galaviz, 415 F.3d 946, 948 (8th Cir 2005).

       The indictment at issue here was flawed on its face. Although the text of the
one-page document charged possession with intent to distribute fifty or more grams
of cocaine, the citation in the indictment was to 21 U.S.C. § 841(b)(1)(B) (penalty for
500 or more grams of cocaine) and the indictment set out the statutory minimum (five
years) and statutory maximum (forty years) for a § 841(b)(1)(B) offense. There is no
§ 841 subsection that refers to fifty or more grams of cocaine per se, and the statutory

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penalties for possession with intent to distribute an amount of cocaine less than 500
grams are described in § 841(b)(1)(C). Moreover, possession of the lesser amount is
a Class C felony, not a Class B felony as noted in the indictment. See 18 U.S.C.
§ 3559(a)(2), (3). Had the plea colloquy continued, it would have become even more
apparent that the indictment was internally inconsistent. See Fed. R. Crim. P. 11(b)(1)
(setting out the facts about which the court must advise the defendant before
considering and accepting a guilty plea, including the nature of the charge and the
minimum and maximum sentences). The District Court did not abuse its discretion
in declining to accept Zambrano’s plea of guilty to a defective indictment that
referenced two different crimes for a single count. Although Zambrano contends that
he had an “absolute right” to plead guilty to the indictment, he has not identified the
source of any such right, whether under rule, statute, or the Constitution. Br. of
Appellant at 16; cf. Santobello, 404 U.S. at 262 (“There is, of course, no absolute right
to have a guilty plea accepted.”).

      The District Court is affirmed.
                      ______________________________




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