                                                                     [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS
                    FOR THE ELEVENTH CIRCUIT
                                                                  FILED
                                                       U.S. COURT OF APPEALS
                       ________________________
                                                         ELEVENTH CIRCUIT
                                                             MAY 03, 2001
                              No. 97-5580                 THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 97-08040-CR-WDF

UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

EFREN GONZALEZ BEJARANO,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      _________________________
                              (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issued in this case on January 8, 2001, is vacated and withdrawn, and this opinion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


                                           4
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).

                                                5
is not entitled to withdraw his guilty plea, and we affirm his conviction and

sentence.

AFFIRMED.




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