IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40158 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SALVADOR TOBIAS-PEREZ,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. B-00-CR-384-1 -------------------- December 27, 2001 Before DAVIS, BENAVIDES and STEWART, Circuit Judges.

PER CURIAM:*

Salvador Tobias-Perez pleaded guilty to count 2 of an

indictment charging him for possession with intent to distribute

marijuana. Tobias has appealed his conviction and sentence.

Tobias contends that his guilty plea should be vacated

because he was advised erroneously at the rearraignment that he

was subject to a four-year period of supervised release, when in

fact he was subject to a four-to-five-year period of supervised

release. We review this question for harmless error. See United

States v. Johnson,

(5th Cir. 1993) (en banc); see

also Fed. R. Crim. P. 11(h). To determine whether flawed advice

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 01-40158 -2-

regarding supervised release is harmless, this court typically

compares the statutory maximum sentence to the "worst case"

scenario that a defendant could face if supervised release were

revoked on the last day of its term. See United States v.

Hekimain,

(5th Cir. 1992) (citing United

States v. Bachynsky,

(5th Cir. 1991) (en

banc)); see also United States v. Cuevas-Andrade,

(5th Cir. 2000), cert. denied,

(2001).

Because Tobias understood that he could have received a maximum

term of imprisonment of 40 years, and because that term exceeds

both his maximum aggregate period of incarceration and his "worst

case" scenario, the district court's noncompliance with Fed. R.

Crim. P. 11 was harmless error. See Cuevas-Andrade,

.

Tobias contends that the district court erred in adjusting

his offense level under U.S.S.G. § 3C1.2 for reckless

endangerment. Tobias argues that there was no evidence that he

endangered other motorists in attempting to flee from Border

Patrol agents. The probation officer's finding as to reckless

endangerment was based upon an agent's statement that Tobias had

attempted to evade arrest by fleeing in his vehicle and that

there were other cars which Tobias must have passed at a high

rate of speed. Tobias offered no evidence in rebuttal. The

probation officer's factual findings bore sufficient indicia of

reliability to support their probable accuracy. See United

States v. Young,

(5th Cir. 1992). The district

court's implicit reliance on these findings in overruling Tobias' No. 01-40158 -3-

objection to the U.S.S.G. § 3C1.2 enhancement was not clearly

erroneous. See United States v. Fitzhugh,

(5th

Cir. 1993) (standard of review). The judgment is

AFFIRMED.