Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
D.C. No. CR-99-01958-RMB
Editorial Note:This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Appeal from the United States District Court for the Southern District of California, Rudi M. Brewster, District Judge, Presiding.
Before TROTT, GRABER, and MCKEOWN, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Yusuf El-Williams appeals the sentence imposed following his guilty plea to one count of importation of approximately 75.37 kilograms of marijuana, in violation of 21 U.S.C. §§ 952 and 960. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we vacate and remand.
El-Williams contends that the district court incorrectly imposed a term of five years of supervised release as part of the sentence that resulted from his guilty plea. The government concurs and advises that El-Williams' conviction, carrying a maximum term of imprisonment of 20 years, constituted a Class C felony as set out in 18 U.S.C. § 3559(a)(3). The maximum term of supervised release for a Class C felony is not more than three years of supervised release. 18 U.S.C. § 3583(b)(2). We, therefore, vacate the district court's judgment and remand for the limited purpose of re-sentencing in accordance with 18 U.S.C. § 3583(b)(2). See United States v. Guzman-Bruno, 27 F.3d 420, 423 (9th Cir.1994) (vacating sentence as plain error and remanding to district court for limited purpose of setting a term of supervised release within the statutorily permitted range).
El-Williams also contends that he should be allowed to withdraw his guilty plea because his rights under Federal Rules of Criminal Procedure Rule 11 were violated when the district court sentenced him to a longer term of supervised release than the maximum term stated at the time of his guilty plea. During the plea colloquy, the United States Attorney correctly advised El-Williams that pursuant to 18 U.S.C. § 3583(b)(2), the maximum term of supervised release that could be imposed was three years. At sentencing, the district court, relying on incorrect information given by the probation department, imposed a five-year term of supervised release. Because we are vacating and remanding for re-sentencing in accordance with 18 U.S.C. § 3583(b)(2), we find that El-Williams' Rule 11 rights were not violated and therefore, his request to withdraw his guilty plea is denied.
VACATED AND REMANDED for re-sentencing in accordance with 18 U.S.C. § 3583(b)(2).