FILED
NOT FOR PUBLICATION OCT 4 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10396
Plaintiff - Appellee, D.C. No. 2:06-cr-01160-MHM
v.
MEMORANDUM *
ANTHONY LEE KOESTER,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Anthony Lee Koester appeals from the 24-month sentence imposed upon
revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Koester contends that his guilty plea was not voluntary and intelligent
because the district court misadvised him that the maximum possible penalty that
could be imposed upon revocation of supervised release was 24 months
cumulatively, rather than 24 months per revocation. Because Koester did not
object on this basis in the district court, we review for plain error. See United
States v. Dominguez Benitez, 542 U.S. 74, 76 (2004). There is no plain error
because Koester has not shown a reasonable probability that he would not have
pled guilty but for the alleged error. See id. at 83. Moreover, Koester received a
total sentence of 24 months for revocation of supervised release.
Koester also contends that the 24-month revocation sentence violates the
terms of his plea agreement because it resulted in a sentence that exceeds the 33-
month maximum incarceration included in the plea agreement. This argument fails
because the plea agreement sentencing limit does not include incarceration that
might be imposed for violations of supervised release. See United States v.
Waknine, 543 F.3d 546, 551 (9th Cir. 2008)(“To decide whether a plea agreement
has been breached, this court considers what the defendant reasonably understood
when he pled guilty.”)(internal quotation marks omitted).
AFFIRMED.
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