           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         October 31, 2007

                                     No. 07-50161                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

ROY ELBERT CARLTON

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas
                           USDC No. 6:06-CR-164-ALL


Before GARWOOD, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       Roy Elbert Carlton appeals the sentence (188 months’ imprisonment
followed by 8 years’ supervised release and a $1,000 fine) imposed following his
guilty-plea conviction for possession with intent to distribute at least five grams
of crack cocaine within 1000 feet of a playground in violation of 21 U.S.C. §§
841(b) and 860. He argues that the district court plainly erred in sentencing him
to eight years of supervised release because, at the Rule 11 hearing, the district


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50161

court advised him that the maximum sentence to which he would be subject was
a fine (of more than $1,000) and 80 years’ imprisonment and three years of
supervised release.       This contention was not raised below.               He requests
modification of the district court’s judgment so that his term of supervised
release is only three years.
       Pursuant to section 860(a), Carlton was subject to a minimum term of
eight years of supervised release; twice the four-year term mandated by section
841(b)(1)(B). 21 U.S.C. § 860(a). Accordingly, the district court’s statement at
the Rule 11 hearing that Carlton faced a three year maximum term of
supervised release was erroneous, but the district court’s sentence of Carlton to
an eight year term of supervised release was correct and within the statutory
authorized limit.
       Carlton does not challenge the validity of his guilty plea, but nevertheless
argues that the district court’s misinformation at rearraignment regarding his
possible supervised release term is a basis for modifying his term of supervised
release. Any error committed by the district court at rearraignment was not
such as to meet the plain error standard of review because the aggregate of the
Carlton's 188 month term of imprisonment combined with the eight years of
supervised release and the three-year period of incarceration that could be
imposed after revocation of his supervised release would not exceed the eighty-
year maximum prison sentence of which Carlton was advised.1 See United States
v. Reyes, 300 F.3d 555, 560-61 (5th Cir. 2002) (holding that a district court's
failure to explain the effect and operation of supervised release was not plain
error when the aggregate of the defendant's term of imprisonment, his term of
supervised release, and any penalty for the revocation of his supervised release


       1
        See 18 U.S.C. § 3583(e)(3) (maximum term for violation of supervised release for Class
B felony is three years); see also 18 U.S.C. § 3559(a)(3) (Carlton's crime is Class B felony
because the maximum term of imprisonment is twenty-five years or more but less than life).

                                              2
                                  No. 07-50161

was less than his advised maximum term of incarceration); United States v.
Cuevas-Andrade, 232 F.3d 440, 444 (5th Cir. 2000) (holding the same as Reyes
under a harmless error standard); see also United States v. Hekimain, 975 F.2d
1098, 1101-03 (5th Cir. 1992) (holding that the district court's failure to explain
the effect of a term of supervised release was not harmless error because the
aggregate of his term of imprisonment plus, his term of supervised release, and
any penalty for the revocation of his supervised release was greater than his
advised maximum term of incarceration). Carlton’s sentence is
                                  AFFIRMED.




                                        3
