                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT


                                No. 98-11266
                              Summary Calendar

          UNITED STATES OF AMERICA,

                                               Plaintiff-Appellee,

                                     versus

          ALFRED BROOKS,

                                               Defendant-Appellant.


          Appeal from the United States District Court
               for the Northern District of Texas
                        (4:98-CR-84-2-A)


                               July 29, 1999
Before SMITH, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
     Alfred Brooks appeals his guilty plea conviction and sentence

for firearms and controlled substance violations.         We affirm.

                   I.   BACKGROUND AND PROCEEDINGS

     Alfred    Brooks   and    his   co-defendant,   Ernest   Lee   Howard,
employed fifteen-year-old DaJuan Pratt to sell marijuana and to

guard their drug house in Fort Worth, Texas.           Brooks and Howard

gave Pratt a pistol to use in the event that someone tried to rob

him while he sold marijuana.         On March 22, 1998, Pratt shot and




     *
      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this opinion should not be published and is not precedent except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.
killed a seven-year-old neighborhood boy under the mistaken belief

that the boy was trying to rob the drug house.

     Brooks and Howard were charged in a nine count indictment,

including:    (1) conspiracy to distribute marijuana and to employ a

person under 18 years of age to possess marijuana with intent to

distribute;   (2) possession of a firearm by a convicted felon;   (3)

possession of ammunition by a convicted felon;    (4) delivery of a

handgun to a juvenile;     (5) employing a person under 18 years of

age to distribute marijuana; (6) maintaining a house to distribute

marijuana;    (7) using and carrying a firearm in relation to a drug

trafficking crime;    (8) transferring a firearm with the knowledge

that it would be used in a drug trafficking crime;           and (9)

employing a person under the age of 18 to maintain a place to

distribute marijuana.

     Howard went to trial and was convicted on all counts.    Brooks

pleaded guilty to Counts 2, 6, and 7 pursuant to a plea agreement

in which he stipulated to a lengthy factual resume describing his

and Howard's activities.     The Government agreed not to prosecute

Brooks for any other offenses arising out of the conduct described

in the factual resume and to consider the possibility of a motion

for a downward departure pursuant to United States Sentencing

Guidelines (U.S.S.G.) § 5K1.1.    Brooks did not waive his right to

appeal.

     At sentencing, the district court applied the provisions of

U.S.S.G. § 2K2.1 and computed his offense levels for Counts 2 and

6 by using the guidelines for second degree murder.    The district


                                  2
court also enhanced Brooks' sentence for obstruction of justice

based on his intimidation of a witness.             The court imposed a 120-

month sentence for Count 2, a concurrent 235-month sentence for

Count   6,   a     consecutive    60-month   sentence    for     Count   7,   and

concurrent three-year terms of supervised release for each count.

Finally,     the    court   ordered     Brooks   and   Howard,    jointly     and

severally, to pay restitution of $3,153 to the victim's mother.

Brooks filed a timely notice of appeal.

                                 II.   DISCUSSION

     In his first point of error, Appellant challenges his guilty

plea to Count 7 of the indictment, arguing that the district court

committed reversible error in violation of Fed. R. Crim. P. 11 when

it failed to advise him that the firearm count to which he pleaded

guilty carried a mandatory minimum penalty.             We conclude that the

district court's failure to advise Appellant on the mandatory

minimum sentence was harmless error.

     Rule 11 of the Federal Rules of Criminal Procedure provides,

in relevant part:

     (c) Advice to Defendant: Before accepting a plea of
     guilty or nolo contendere, the court must address the
     defendant personally in open court and inform the
     defendant   of,  and   determine that  the  defendant
     understands, the following:

     (1) the nature of the charge to which the plea is
     offered, the mandatory minimum penalty provided by law,
     if any, and the maximum possible penalty provided by law,
     including the effect of any special parole or supervised
     release term, the fact that the court is required to
     consider any applicable sentencing guidelines but may
     depart from those guidelines under some circumstances,
     and, when applicable, that the court may also order the
     defendant to make restitution to any victim of the
     offense; ...

                                         3
     (h) Harmless Error. Any variance from the procedures
     required by this rule which does not affect substantial
     rights shall be disregarded.

     When an appellant claims that a district court has failed to

comply with Rule 11, we “conduct a straightforward, two-question

'harmless error' analysis:    (1) Did the sentencing court in fact

vary from the procedures required by Rule 11, and (2) if so, did

such variance affect substantial rights of the defendant?”    United

States v. Johnson, 1 F.3d 296, 298 (5th Cir. 1993) (en banc).      To

determine whether the error affected substantial rights, we focus

on whether “the defendant's knowledge and comprehension of the full

and correct information would have been likely to affect his

willingness to plead guilty.”    Johnson, 1 F.3d at 302.

     Under the first prong of the analysis, we conclude the court

varied from the procedures required by Rule 11. The district court

informed Brooks that the firearm count carried a “maximum sentence”

of 60 months' imprisonment.     In fact, a violation of 18 U.S.C. §

924(c) requires a mandatory five-year sentence, consecutive to any

other term of imprisonment.     See 18 U.S.C. § 924(c)(1)(A)(i).

     Having found error, the next question is whether the error

affected Brooks' willingness to plead guilty.    These facts present

a prototypical case of harmless error.        See United States v.

Williams, 120 F.3d 575, 578 (5th Cir. 1997), cert. denied, 118 S.

Ct. 722 (1998) (holding harmless error where actual sentence was

less than the actual possible maximum);     United States v. Pierce,

5 F.3d 791, 793-94 (5th Cir. 1993) (same).      Here, the sentencing

court informed Brooks during the Rule 11 colloquy that his maximum


                                  4
possible prison time was 35 years (420 months) plus terms of

supervised release up to 72 months.    Brooks' actual sentence was

295 months' imprisonment followed by 36 months of supervised

release, less than the maximum of which he was informed.

     We conclude from our review of the record as a whole that the

court's failure to advise of the mandatory minimum sentence on the

weapons offense was harmless error and did not influence the

defendant's decision to enter his guilty plea.    The court did not

commit reversible error on this point.

     In his second point of error, Brooks argues that the district

court erred by computing his base offense level for Counts 2 and 6

using the guidelines for second degree murder.     See U.S.S.G. §§

2A1.2, 2K2.1(c)(1)(B).   Brooks contends that the court should have

applied the guidelines for involuntary manslaughter.    This Court

reviews the application of the Sentencing Guidelines de novo, and

it reviews the sentencing court's factual findings for clear error.

See United States v. Edwards, 65 F.3d 430, 432 (5th Cir. 1995).

     The record supports the district court's finding that Brooks

acted with malice aforethought when he and his co-defendant Howard

supplied a teenager with a weapon and instructed him to use it if

someone attempted to rob the drug house.   Thus, the district court

correctly applied the sentencing guidelines for second degree

murder to determine Brooks' base offense level.   See United States

v. Branch, 91 F.3d 699, 711, 734 (5th Cir. 1996), cert. denied, 520

U.S. 1185 (1997); United States v. Gonzales, 996 F.2d 88, 89-92

(5th Cir. 1993).


                                 5
     In his third point of error, Brooks challenges the district

court's determination that his sentence should be enhanced for

obstruction of justice.   U.S.S.G. § 3C1.1 provides for a two-level

increase in the base offense level “if [] the defendant willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the course of investigation,

prosecution,   or     sentencing      of      the     instant    offense    of

conviction....” This Court reviews a sentencing court's finding of

obstruction of justice for clear error.               See United States v.

Ismoila, 100 F.3d 380, 397 (5th Cir. 1996).

     Immediately    following   the       shooting,   Brooks    called   Lenora

Calton, the lessee of the drug house, and told her not to mention

him or Howard to the police.          The next day, Brooks and Howard

visited Calton, and threatened her not to reveal his and Howard's

names to the police.      We find no error in the enhancement of

Brooks' sentence for obstruction of justice.

     Finally, Brooks argues that the district court erred in

imposing restitution upon him without explaining at the time of the

guilty plea that restitution was a possibility.            The legality of a

restitution order is reviewed de novo, and, if the sentence is

legal, the award is reviewed for an abuse of discretion.                   See

United States v. Reese, 998 F.2d 1275, 1280 (5th Cir. 1993)

(citation omitted).

     A failure in a plea colloquy mandates reversal only when it

affects substantial rights, i.e., when the defendant's “knowledge

and comprehension of the full and correct information would have


                                      6
been likely to affect [the defendant's] willingness to plead

guilty.”    Johnson, 1 F.3d at 302.       The issue “'must be resolved

solely on the basis of the Rule 11 transcript' and the other

portions (e.g., sentencing hearing) of the limited record made in

such cases.”    Id.   (citation omitted).

       Applying this standard to the instant case, we conclude that

the district court's failure to mention the restitution during the

plea    colloquy   was    harmless   error.       Brooks   knew   from   the

rearraignment hearing and the plea agreement that he could be fined

up to $1,000,000.        Furthermore, Brooks knew from the PSR that he

was required to pay restitution to the victim's family under the

Mandatory Victim Restitution Act of 1994. Brooks did not object to

the recommended order of restitution.         The district court's $3153

order of restitution was harmless error where the defendant was

advised of possible fines and the restitution did not exceed the

maximum possible fine. See United States v. Padin-Torres, 988 F.2d

280, 284 (1st Cir. 1993) (order of restitution without prior notice

at plea colloquy deemed harmless where restitution did not exceed

maximum fine amount of which defendant was advised); United States

v. Fox, 941 F.2d 480, 484 (7th Cir. 1991) (same).

                              III.   CONCLUSION

       Based on the foregoing, Appellant's guilty plea and sentence

are AFFIRMED.




                                      7
