                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                            MAR 04 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

UNITED STATES OF AMERICA,                        No. 09-10477

              Plaintiff - Appellee,              D.C. No. 5:07-cr-00106-RMW-2

  v.
                                                 MEMORANDUM *
FRANCISCO TORRES FELIX,

              Defendant - Appellant.



                  Appeal from the United States District Court
                      for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                     Argued and Submitted February 14, 2011
                            San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and BENNETT, District
Judge.**

       Francisco Torres Felix appeals the sentence imposed following his guilty

plea to conspiracy to possess with intent to distribute a mixture containing cocaine

(21 U.S.C. §§ 841 and 846); possession with intent to distribute a mixture

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Mark W. Bennett, District Judge for the United States
District Court for the Northern District of Iowa, sitting by designation.
containing cocaine (21 U.S.C. § 841); carrying a firearm during and in relation to,

or possessing a firearm in furtherance of, a drug trafficking crime (18 U.S.C.

§ 924(c)(1)(A)); possession of a firearm as an undocumented person (18 U.S.C.

§ 922(g)(5)(A)); and illegal reentry (8 U.S.C. § 1326).

      Torres Felix first contends that the district court did not adequately explain

the elements of the § 924(c) offense because it conflated the offense’s two clauses.

The district court’s conflation does not constitute reversible error. The clauses are

similar in the proof they require. Thus, “[g]iven the conceptual similarity between

the two statutory clauses,” the conflation did not “seriously affect the fairness,

integrity or reputation of the” proceeding. United States v. Nobari, 574 F.3d 1065,

1080 (9th Cir. 2009) (citation, internal quotation marks, and brackets omitted).

Nobari dealt with jury instructions, not a plea colloquy, but the possible prejudicial

implications of the misstatement were, if anything, greater in the instructional

context than in that of a counseled plea colloquy.

      Torres Felix next contends that the district court erred by misstating the

offense’s maximum sentence. However, Torres Felix failed to “show a reasonable

probability that, but for the error, he would not have entered the plea.” United

States v. Dominguez Benitez, 542 U.S. 74, 83 (2004). The district court gave




                                           2
Torres Felix numerous opportunities to withdraw his plea and Torres Felix

declined to do so.

      Finally, Torres Felix appeals his sentencing to a consecutive mandatory

minimum sentence for his violation of § 924(c) given that he was already subject to

a mandatory minimum for the drug offense. As Torres Felix conceded at oral

argument, Abbott v. United States forecloses this challenge. 131 S. Ct. 18, 23

(2010) (“[A] defendant is subject to a mandatory, consecutive sentence for a §

924(c) conviction, and is not spared from that sentence by virtue of receiving a

higher mandatory minimum on a different count of conviction.” ).

      AFFIRMED.




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