IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 96-40629
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BILLY EUGENE HUSKEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 3:96-CR-2-1
June 5, 1997
Before HIGGINBOTHAM, WIENER, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Court-appointed counsel for Billy Eugene Huskey has filed a
brief asserting that Huskey’s case presents no non-frivolous
arguments for review and has asked to withdraw. See Anders v.
California, 386 U.S. 738 (1967). We have given Huskey an
opportunity to contest the withdrawal, but he has not filed a
response.
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
In accordance with a plea agreement, Huskey pled guilty to a
violation of 18 U.S.C. § 922(g)(1). By statute, this offense
carries a maximum prison sentence of ten years. 18 U.S.C.
§ 924(a)(2) (West Supp. 1997). It appears, however, that the
district court did not fully comply with Fed. R. Crim. P. 11(c)(1)
before accepting the plea, for it did not explain to Huskey the
consequences of failing to abide by the terms of his three-year
supervised release. If Huskey violates those terms, the district
court could impose further time in prison without giving credit for
time already served under supervised release. See 18 U.S.C.
§ 3583(e)(3) (West Supp. 1997).
We are convinced, however, that the district court’s error did
not “affect substantial rights.” See Fed. R. Crim. P. 11(h).
Because Huskey pled to a Class C felony, § 3583(e)(3) allows no
more than two years of imprisonment after revocation of supervised
release. The court sentenced Huskey to 92 months in prison, the
minimum available under the sentencing guidelines. At most, then,
Huskey might serve 116 months as a result of his plea. As the
court advised Huskey before it accepted his plea, the guidelines
permit a sentence of as many as 115 months.
If the sentencing guidelines had run from 92-116 months
instead of 92-115 months, Huskey would have no reason to complain
that the court did not inform him of the potential length of his
imprisonment. See United States v. Bachynsky, 934 F.2d 1349, 1353
(5th Cir.) (en banc) (finding harmless error where the “‘worst
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case’ hypothesis” did not give the defendant more prison time than
the maximum penalty announced at the plea colloquy), cert. denied,
502 U.S. 951 (1991). In order to win the right to withdraw his
plea, Huskey would have to convince the court that the remote
possibility of an extra month in prison at the end of a sentence of
more than nine years “would have been likely to affect his
willingness to plead guilty.” United States v. Johnson, 1 F.3d
296, 302 (5th Cir. 1993) (en banc). We cannot imagine that this
minute difference in the ramifications of Huskey’s plea could have
changed the results of his calculations. See also United States v.
Arlen, 947 F.2d 139, 146 (5th Cir. 1991) (“Arlen . . . was willing
to plead guilty with the prospect of receiving a substantial jail
sentence. [He] has not explained why knowledge of all the
requirements attendant to supervised release would have caused him
to go to trial rather than enter a plea.”), cert. denied, 503 U.S.
939 (1992).
Furthermore, we agree with Huskey’s counsel that any error the
court might have committed in calculating Huskey’s criminal history
points did not affect his sentence.
Huskey’s counsel’s motion to withdraw is GRANTED, and Huskey’s
appeal is DISMISSED.
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