DWIGHT STEVEN BARRY, PETITIONER V. UNITED STATES OF AMERICA

   No. 89-7134

   In The Supreme Court Of The United States

   October Term, 1989

   On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit

   Brief For The United States In Opposition

                             OPINION BELOW

   The opinion of the court of appeals (Pet. App. 1-8) is reported at
895 F.2d 702.

                             JURISDICTION

   The judgment of the court of appeals was entered on February 5,
1990.  The petition for a writ of certiorari was filed on April 6,
1990.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254(1).

                          QUESTION PRESENTED

   Whether the district court's failure to advise petitioner at the
time he entered his guilty plea that his sentence would include a
mandatory period of supervised release was harmless error under Fed.
R. Crim. P. 11(h), when petitioner was advised of his exposure to
supervised release in the presentence report and ultimately received a
lower sentence than the maximum of which he was advised.

                               STATEMENT

   Petitioner pleaded guilty in the United States District Court for
the District of Kansas to attempted possession with intent to
distribute cocaine, in violation of 21 U.S.C. 846.  He was sentenced
to 72 months' imprisonment, to be followed by a five-year term of
supervised release.

   1. An indictment returned in May 1988 charged petitioner with
conspiracy to distribute cocaine (Count I) and attempted possession
with intent to distribute cocaine (Count V).  Thereafter, petitioner
entered into a plea agreement under which he agreed to plead guilty to
Count V of the indictment.  In return, the government agreed to
dismiss Count I and to recommend imposition of a sentence at the lower
end of the applicable Guideline range.  Pet. App. 2.

   During petitioner's plea proceeding, he acknowledged that he
understood that his sentence would be governed by the Sentencing
Guidelines and that he had discussed the Guidelines with his attorney.
 Transcript of July 25, 1988 (hereinafter Plea Tr.) 8-9.  Petitioner's
attorney confirmed that he and petitioner had discussed the possible
range within which petitioner might be sentenced under the Guidelines.
 Id. at 9.  The court advised petitioner that the maximum penalty for
his offense was 40 years' imprisonment and a $2 million fine, id. at
15, but failed to note that the sentence would also include a
mandatory term of supervised release.  Pet. App. 2.

   At petitioner's sentencing, petitioner's attorney stated that he
had reviewed the presentence report with petitioner and that
petitioner did not dispute the accuracy of the information contained
in the report.  Transcript of Sept. 23, 1988 (hereinafter Sent. Tr.)
3-4.  The district court found, as the presentence report determined,
that the applicable Guidelines required a term of imprisonment of
between 92 and 115 months, plus three to five years of supervised
release.  Gov't C.A. Br. 2;  Sent. Tr. 9-10.  Agreeing with
petitioner's contention that the criminal history category to which he
had been assigned overstated the seriousness of his prior criminal
conduct (Sent. Tr. 4-5), the court sentenced petitioner to 72 months'
imprisonment, to be followed by five years of supervised release.  Id.
at 9-10, 14.

   2. In the court of appeals, petitioner contended that he should be
allowed to withdraw his plea of guilty because the district court had
not advised him before accepting the plea that his sentence would
include a term of supervised release, as required by Fed. R. Crim. P.
11(c)(1).  The court of appeals affirmed.  Pet. App. 1-8.

   The court acknowledged that the district court had violated Fed. R.
Crim. P. 11(c)(1) by failing to advise petitioner that he would be
subject to a term of supervised release, but held that the error was
harmless under Fed. R. Crim. P. 11(h).  Pet. App. 5.  Noting that
petitioner's "total sentence -- including the term of supervised
release -- is only a fraction of the maximum penalty of which he was
advised," the court concluded that "the district court's error could
not have had a significant influence on (petitioner's) decision to
plead guilty." Id. at 6-7.

                               ARGUMENT

   Petitioner renews his contention that the district court's failure
to inform him before accepting his guilty plea that his sentence would
include a term of supervised release requires reversal of his
conviction.  Pet. 5-8.  Although we agree that petitioner should have
been advised of the mandatory term of supervised release when he
offered his plea, the error was demonstrably harmless for two reasons.
 First, it was rectified prior to the imposition of sentence.  Second,
since petitioner's sentence was less severe than the maximum of which
he was advised, the omission could not have affected his decision to
plead guilty.

   The record establishes that petitioner was aware of his exposure to
supervised release before sentence was imposed.  The presentence
report, which petitioner reviewed with his attorney before the
sentencing hearing, included the probation officer's determination
that the Sentencing Guidelines required a term of supervised release
of between three and five years.  See Gov't C.A. Br. 2;  Sent. Tr. 3.
At the sentencing hearing, the district court reiterated that the
sentence prescribed by the Guidelines would include a term of
supervised release.  Id. at 10.  Neither petitioner nor his attorney
-- whose competence has not been challenged -- objected to the
imposition of a term of supervised release despite several
opportunities to do so.  See id. at 3, 4, 6, 10.  Under these
circumstances, the district court's earlier omission could not have
affected petitioner's substantial rights.  See United States v. Carey,
884 F.2d 547, 549 (11th Cir. 1989), cert. denied, No. 89-6172 (Apr. 2,
1990);  United States v. Reyes-Ruiz, 868 F.2d 698, 703-704 (5th Cir.
1989);  cf. United States v. Peden, 872 F.2d 1303, 1309 (7th Cir.
1989) (trial court's failure to advise defendant that sentence could
include obligation to pay restitution was harmless error where
defendant acknowledged that he had reviewed presentence report
advising him of potential restitution obligation).

   Moreover, petitioner's sentence, 72 months of imprisonment followed
by five years of supervised release, was far less than the potential
40-year term of imprisonment of which he was advised at the plea
hearing.  Since petitioner was prepared to plead guilty at a time when
he was exposed to 40 years' imprisonment, his decision to offer a plea
could not have been different if he had known that he would be
sentenced to six years' imprisonment and five years' supervised
release.

   It is well-established that an omission of this kind is harmless
error under Rule 11(h).  In its note on the 1983 amendment that added
subdivision h to Rule 11, the Advisory Committee cited as an example
of harmless error the situation in which a judge "understated the
maximum penalty somewhat, but the penalty actually imposed did not
exceed that indicated in the warnings * * * ." 18 U.S.C. App. at 751.
In a number of cases with facts similar to those of this case, the
courts of appeals have held such departures from Rule 11 to be
harmless.  See, e.g., United States v. Sanclemente-Bejarano, 861 F.2d
206, 210 (9th Cir. 1988);  United States v. McGeehan, 824 F.2d 677,
680 (8th Cir. 1987), cert. denied, 484 U.S. 1061 (1988);  United
States v. Samuelson, 722 F.2d 425, 426-427 (2d Cir. 1983);  United
States v. Rodrigue, 545 F.2d 75 (8th Cir. 1976);  Bell v. United
States, 521 F.2d 713 (4th Cir. 1975);  Aviles v. United States, 405 F.
Supp. 1374 (S.D.N.Y. 1975), aff'd, 538 F.2d 307 (2d Cir. 1976).

   Petitioner asserts, however, that the court of appeals' decision in
this case conflicts with United States v. Sharon, 812 F.2d 1233 (9th
Cir. 1987), and United States v. Molina-Uribe, 853 F.2d 1193 (5th Cir.
1988), cert. denied, 109 S. Ct. 1145 (1989).  Neither of the decisions
cited by petitioner supports reversal of his conviction.

   In United States v. Sharon, the defendant was told that he faced a
maximum sentence of 21 years' imprisonment, but the trial court
neglected to advise him that he also faced a special parole term of
three years to life.  He was sentenced to a ten-year prison term
followed by a ten-year special parole term on one count, four- and
two-year suspended sentences on two other counts, and five years of
probation;  the sentences on all of the counts were to run
consecutively.  812 F.2d at 1234.  In holding that the failure to
advise the defendant of the special parole term was not harmless, the
Ninth Circuit specifically noted that if he "violates his parole or
probation, his liberty could be restricted for well over 21 years,"
the maximum term of imprisonment of which he was advised.  Ibid.
Petitioner does not face any comparable risk.  /1/

   In United States v. Molina-Uribe, the Fifth Circuit set aside a
guilty plea in a case in which the district court failed to advise the
defendant of a mandatory special parole term of four years to life and
the defendant received a lower sentence than the maximum of which he
was advised.  The court did not address the question whether these
circumstances rendered the omission harmless, however.  853 F.2d at
1200.  Thereafter, in United States v. Reyes-Ruiz, supra, the Fifth
Circuit held that a failure accurately to advise a defendant of his
exposure to supervised release was harmless error.  /2/ 868 F.2d at
703.  The court distinguished Molina-Uribe.  Id. at 704.  There is no
conflict warranting this Court's review between the decision in this
case and decisions in other circuits.  /3/

                              CONCLUSION

   The petition for a writ of certiorari should be denied.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Assistant Attorney General

   NINA GOODMAN

      Attorney

   MAY 1990

   /1/ In United States v. Sanclemente-Bejarano, the Ninth Circuit
held that the failure to advise a defendant of his exposure to a term
of supervised release was harmless where the district court told him
that the maximum sentence was life imprisonment and ultimately
sentenced him to 15 years in prison plus five years of supervised
release.  861 F.2d at 210.  Declaring that its "analysis of harmless
error has generally turned on whether the defendant knew that he could
be sentenced to a term as long as the one he eventually received," the
Ninth Circuit found that "no prejudice resulted to
(Sanclemente-Bejarano) from the omission, and the court's error was
therefore harmless." Ibid.  Sanclemente-Bejarano confirms that
petitioner would not be entitled to relief from his conviction under
the harmless error analysis now being applied by the Ninth Circuit.

   /2/ In Reyes-Ruiz, the trial court advised the defendant that the
maximum term of supervised release to which he was exposed was two
years, rather than three.  The presentence report accurately stated
the applicable penalty.  The Fifth Circuit concluded that "(i)n view
of the fact that the court did not impose any term of supervised
release, and because (the defendant) was informed of the correct
maximum in the presentence report, * * * no reversible error has been
shown." 868 F.2d at 703.  In this case, petitioner was accurately
advised in his presentence report of his exposure to supervised
release, and, as in Reyes-Ruiz, his sentence was ultimately less
stringent than the maximum of which he was advised.  In the Fifth
Circuit, we submit, the reasoning of Reyes-Ruiz would require
affirmance of a conviction on facts like those of this case.

   /3/ Petitioner's reliance (Pet. 5, 8) on this Court's decision in
McCarthy v. United States, 394 U.S. 459 (1969), is misplaced.
Although McCarthy's observation that "prejudice inheres in a failure
to comply with Rule 11" (id. at 471) was once the source of some
uncertainty as to whether a violation of Rule 11 invariably required
vacation of a defendant's guilty plea, Rule 11(h) now makes it clear
that all such errors are subject to customary harmless error analysis.
 See Advisory Committee Note to 1983 Amendment to Rule 11, 18 U.S.C.
App. at 750-751.  This Rule forecloses petitioner's contention that "a
defendant is entitled to plead anew if the (the court) accepts his
guilty plea without fully adhering to the procedure provided under
Rule 11" (Pet. 5).  See also United States v. Jaramillo-Suarez, 857
F.2d 1368, 1371 (9th Cir. 1988).