### The Honorable Dean Whipple, United States District Judge 1 

### for the Western District of Missouri. ___________ No. 96-1307

___________ Jose Leon Barahona-Paredes, * * Appellant, * * Appeal from the United States v. * District Court for the * Western District of Missouri. United States of America, * [UNPUBLISHED] * Appellee. *

___________ Submitted: October 2, 1996 Filed: October 7, 1996

___________ Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

___________ PER CURIAM.

Jose Leon Barahona-Paredes (Barahona) appeals the district court's 1 order denying his 28 U.S.C. § 2255 motion. We affirm.

After pl eading guilty to a drug offense, Barahona was sentenced t o 121 months' imprisonment and five years' supervised release. On direc t appeal, w e affirmed. United States v. Barahona , 990 F.2d 412 (8th Cir

. 1993). Barahona then filed this section 2255 motion, asserting that his guilty plea was invol untary because the district court did not advise him about the effect of supervised release and about the court's power t o depart from the Guide lines range, as required by Federal Rule of Criminal Procedure 11(c)(1). Barahona also asserted that the court should hav e departed downward at sentencing based upon his cooperation with the

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authori ties and his aberrant behavior. The district court denied th e motion.

We review de novo the denial of Barahona's motion and, "as it wa s deni edwithout a hearing, will affirm only if the motion, files, an d records c onclusively show he is not entitled to relief." See Arnold v

. United States , 63 F.3d 708, 709 (8th Cir. 1995). A Rule 11 violation does not justify section 2255 relief unless the violation "`results in a complete miscarriage of justice,' or is `inconsi stent with the rudimentary demands of fair procedure.'" Holloway v. United States , 960 F.2d 1348 , 1353 (8th Cir. 1992) (quoted cases omitted). We agree with the district court that its noncompliance with Rule 11(c)(1) constituted harmless error because Barahona has not established he was prejudiced by the court' s omis sions. See Fed. R. Crim. P. 11(h) (any variance from procedure s required by Rule 11 not affecting substantial rights shall be disregarded) ; see also United State s v. Young , 927 F.2d 1060, 1062 (8th Cir.) (applying Rule 11(h) to Rule 11(c)(1) violation), cert. de nied , 502 U.S. 943 (1991).
As to his supervised-release claim, Barahona was advised that he was subject to a statutory maximum term of life imprisonment. Assuming that Barahona serves his entire 121-month sentence, violates his supervised

rele ase conditions one day before expiration of his supervised-releas e term , and is required to serve his entire supervised-release term i n prison, his total prison sentence will still not exceed the maximum life sentenc e of which he was advised. Cf. United States v. Osment , 13 F.3 d 124 0, 1243 (8th Cir. 1994) (concluding that district court's failure t o advise defendant of e ffect of supervised-release term could not be deemed har mless, because in worst-case scenario, defendant's total potentia l impris onment could exceed maximum prison sentence described by court a t plea hearing). Furthermore, Barahona has not asserted that he would not have pleaded guilty had he been advised of the effect of supervised releas e and of the court's power to

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depart from the Guidelines range. See Holloway , 960 F.2d at 1354; cf

. Clemons v. Armontrout , 921 F.2d 187, 191 (8th Cir. 1990) (trial court' s misstatement in plea hearing constitutes reversible error only if it "play s a material factor" in defendant's decision to pl ead guilty), cert. denied , 501 U.S. 1235 (1991).

We also agree with the district court that Barahona procedurall y defaulted his downwar d-departure claims by failing to present them in the sentencing court or o n direct appeal. See United States v. Ward , 55 F.3d 412, 413-14 (8th Cir. 1995). Finally, we conclude that the court did not abuse its discretion in denying Barahona's motion without a hearing. See Engelen v . United States , 68 F.3d 238, 241 (8th Cir. 1995) (standard o f review).
Accordingly, the judgment is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.