Appeal from the United States District Court for the Eastern District of California. D.C. Nos. CV-F-89-0235-EDP, CR-F-88-0029-EDP, CR-F-88-0068-EDP. Edward D. Price, District Judge, Presiding
Before: Schroeder, Fletcher, and Noonan, Circuit Judges.
Willie Teague, a federal prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2255 motion challenging his guilty plea conviction for distribution of PCP in violation of 21 U.S.C. § 841(a)(1). Teague contends that his guilty plea was invalid because the district court neglected to inform him that he was subject to a term of supervised release. We have jurisdiction under 28 U.S.C. § 2255. We review de novo, Rodriguera v. United States, 954 F.2d 1465, 1467 (9th Cir. 1992), and we vacate and remand to allow Teague an opportunity to replead.
Before a trial court accepts a guilty plea, it must inform the defendant of the maximum possible penalty provided by the law, including the effect of any special parole term or supervised release term. Id. at 1468; Fed. R. Crim. P. 11(c)(1). However, any variance from these procedures which does not affect the substantial rights of the defendant shall be disregarded. Rodriguera, 954 F.2d at 1468; Fed. R. Crim. P. 11(h).
Therefore, the only issue before this court is whether the failure to inform Teague of the mandatory supervised release term affected his substantial rights. See id. If a defendant knows before pleading guilty that he could be sentenced to a term as long as the one he eventually received, the error is harmless. See id. However, the error is not harmless if the defendant's liberty may be restricted for more than the maximum period of which he was advised. See id.
Here, Teague was advised that the maximum term he could receive was 40 years (480 months). He was sentenced to a term of 262 months followed by a five-year term of supervised release. Teague's term on its face does not involve custody for more than 40 years. "However, 'pursuant to 18 U.S.C. 3583(e)(2), a supervised release term may . . . be extended, potentially to a life term, at any time before it expires.'" Rodriguera, 954 F.2d at 1469 (quoting United States v. Sanclemente-Bejarano, 861 F.2d 206, 209 (9th Cir. 1988)). Therefore, Teague's liberty potentially could be restricted for more than forty years, and thus, for a period longer than the maximum of which he was advised. See id. Consequently, the district court's failure to inform Teague of the supervised release term affected Teague's substantial rights and requires that he be provided an opportunity to plead anew. See id.
Teague also contends that his counsel was ineffective because he incorrectly predicted the length of the sentence. Because we vacate Teague's conviction on other grounds, we do not reach this issue.*fn1