1 The Honorable Richard E. Dorr, United St ates District Judge for the Western District of Missouri. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-3490

___________ United States of America, *
* Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. George Allen, * * [UNPUBLISHED] Appellant. *

___________ Submitted: April 4, 2008 Filed: April 10, 2008

___________ Before MURPHY, COLLOTON, and SHEPHERD, Circuit Judges.

___________ PER CURIAM. George Allen pleaded guilty to possessing heroin while incarcerated in a federal correctional facility, in violation of 18 U.S.C. § 1791. The district court 1 imposed a prison term of 27 months to run consecutiv ely to his undischargedfederal and state terms of imprisonment, and a 3-year term of supervised release to run concurrently with his undischarged federal term of supervised release. On appeal, Allen’s counsel has filed a brief under Anders v. California , 386 U.S. 738 (1967), in which he requests permission to withdraw and presents argumen ts related to the calculation of Allen’s-2- base offense level under the Guidelines, th e requirement that Allen’s sentence run consecutively to his undischarged state sent ence, and the denial of Allen’s motion to withdraw his guilty plea.

We conclude that the district court pr operly determined A llen’s base offense level to be 13. See U.S.S.G. § 2P1.2(a)(2) (base offense level of 13 applies if contraband possessed in pris on was narcotic drug); Un ited States v. Blanton , 281 F.3d 771, 775 (8th Cir. 2002) (district court’s in terpretation and appli cation of Guidelines reviewed de novo). Although the indictme nt mistakenly referred to 18 U.S.C. § 1791(b)(2), instead of § 1791(b)(1) (appli cable when the offense involved narcotic drug), Allen was not prejudiced by the mistak e because he stated at the plea hearing that he was not promised anything as to wh at his sentence would be, he conceded that heroin is a narcotic drug, and he was sentenced at the bottom of the properly calculated Guidelines range--well below both the 10-year maximum he acknowledged and the correct 20-year statutory maximum. Cf. Fed. R. Crim. P. 7(c)(3) (unless defendant was misled and thereby prejudiced , neither error in citation nor citation’s omission is ground to dismiss indictment or to reverse conviction); United States v. Czeck , 671 F.2d 1195, 1197 (8th Cir. 1982) (“An indictment is fatally insufficient when an essential element ‘of substance’ is omitted, rather than one ‘of form’ only.”).

We further conclude there is no merit to Allen’s challenge to the requirement that his new sentence run consecutively to his undischarged state sentence. See18 U.S.C. § 1791(c) (“Any punishment imposed under subsection (b) for a violation of this section by an inmate of a prison sha ll be consecutive to the sentence being served by such inmate at the time the inmate commits such vi olation.”); U.S.S.G. § 5G1.3(a) (if instant offense was committed while defe ndant was serving term of imprisonment, sentence for instant offense shall be impos ed to run consecutively to undischarged term of imprisonment); Swepston v. United States , 289 F.2d 166, 168 (8th Cir. 1961) (right to impose consecutive sentences is inherent in federal courts).-3- We also conclude that the district c ourt did not abuse its discretion in denying Allen’s motion to withdraw his guilty plea, because during the plea hearing, Allen confirmed his understanding of--among other things--the possibility of a consecutive sentence of up to 10 years in prison and th e limitations on his ability to withdraw a guilty plea. SeeFed. R. Crim. P. 11(d)(2)(B) (def endant may withdraw plea if he can show fair and just reason for requesting withdrawal); United States v. Moore , 481 F.3d 1113, 1114 (8th Cir.) (abuse-of-discreti on standard; guilty plea should not be set aside lightly; affirming district court’s denial of request to withdr aw plea and rejecting defendant’s claim that he did not fully unde rstand ramifications of plea where district court fully advised him of those ramifications at plea hearing and defendant testified under oath that he understood them), cert. denied , 128 S. Ct. 122 (2007).

Having reviewed the record i ndependently under Penson v. Ohio , 488 U.S. 75, 80 (1988), we find no nonfrivolous issues. Accord ingly, we affirm the district court’s judgment and we grant counsel’s request to withdraw on condition that counsel inform appellant about the procedures for filing petitions for rehearing and for certiorari.

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