The Honorable Dean Whipple, United States District Judge 1

for the Western District of Missouri.

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No. 96-1307

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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United States of America, * [UNPUBLISHED]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. *

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 Submitted: October 2, 1996

 Filed: October 7, 1996

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Before FAGG, WOLLMAN, and MURPHY, Circuit Judges.

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PER CURIAM.

Jose Leon Barahona-Paredes (Barahona) appeals the district court's1

order denying his 28 U.S.C. § 2255 motion. We affirm.

After pleading guilty to a drug offense, Barahona was sentenced to

121 months' imprisonment and five years' supervised release. On direct

appeal, we 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 involuntary because the district court did not advise him

about the effect of supervised release and about the court's power to

depart from the Guidelines range, as required by Federal Rule of Criminal

Procedure 11(c)(1). Barahona also asserted that the court should have

departed downward at sentencing based upon his cooperation with the
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authorities and his aberrant behavior. The district court denied the

motion. 

We review de novo the denial of Barahona's motion and, "as it was

denied without a hearing, will affirm only if the motion, files, and

records conclusively 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 `inconsistent 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

omissions. See Fed. R. Crim. P. 11(h) (any variance from procedures

required by Rule 11 not affecting substantial rights shall be disregarded);

see also United States v. Young, 927 F.2d 1060, 1062 (8th Cir.) (applying

Rule 11(h) to Rule 11(c)(1) violation), cert. denied, 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 supervisedrelease conditions one day before expiration of his supervised-release

term, and is required to serve his entire supervised-release term in

prison, his total prison sentence will still not exceed the maximum life

sentence of which he was advised. Cf. United States v. Osment, 13 F.3d

1240, 1243 (8th Cir. 1994) (concluding that district court's failure to

advise defendant of effect of supervised-release term could not be deemed

harmless, because in worst-case scenario, defendant's total potential

imprisonment could exceed maximum prison sentence described by court at

plea hearing). Furthermore, Barahona has not asserted that he would not

have pleaded guilty had he been advised of the effect of supervised release

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 "plays

a material factor" in defendant's decision to plead guilty), cert. denied,

501 U.S. 1235 (1991).

We also agree with the district court that Barahona procedurally

defaulted his downward-departure claims by failing to present them in the

sentencing court or on 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 of

review).

Accordingly, the judgment is affirmed.

A true copy.

Attest:

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