PER CURIAM:
Appellant Christopher Ellerby appeals his convictions for drug and firearm-related offenses and 140-month sentence. Ellerby contends that the Government did not have a legitimate reason to require that he withdraw his objections to the presentence report ("PSR") in exchange for it asking for a downward departure pursuant to U.S.S.G. § 5K1.1. Ellerby further contends that his counsel provided ineffective assistance by misadvising him on the length of his prison sentence. For the following reasons, the Court affirms Ellerby's convictions and sentence.
Ellerby first contends that the Government's refusal to support the § 5K1.1 motion unless he withdrew his objections to the PSR amounts to plain error that affects his substantial rights. In support of his claim, Ellerby points to
Ellerby argues that this precedent logically extends to this context — where instead of the Government refusing to file the motion, it conditioned not withdrawing the motion on Ellerby's withdrawal of his objections to the PSR. Assuming that
Ellerby next argues that his trial counsel provided ineffective assistance when he misadvised Ellerby that a § 5K1.1 motion was sufficient to allow the court to order his sentence for knowingly possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c) (count two), to run concurrent to his sentence for conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846 (count one). A sentence imposed for a conviction under 18 U.S.C. § 924(c), however, must run consecutive to any other sentence imposed. Generally, an ineffective-assistance-of-counsel claim is not cognizable on direct appeal,
Ellerby claims that he has been prejudiced because he based his decisions to plead guilty and to withdraw his PSR objections on his attorney's erroneous advice. With respect to his decision to plead guilty, Ellerby does not direct the Court to any evidence within the record, not even a sworn affidavit that indicates his counsel misadvised him regarding his sentence
Even if the Court assumes that trial counsel did misadvise Ellerby prior to him entering a guilty plea, and that misadvice constitutes ineffective assistance, the district court cured any potential prejudice flowing from the ineffective assistance when it specifically admonished Ellerby twice that a sentence for count two would run consecutive to any other sentence imposed.
Similarly, Ellerby cannot show that he was prejudiced by counsel's misadvice that was given in deciding to withdraw his PSR objections. The record indicates that trial counsel may have misadvised Ellerby the night before the first sentencing hearing on January 7, 2011. Realizing that counsel may have misinformed Ellerby regarding his sentence, the district court granted a continuance for the specific purpose of allowing trial counsel the opportunity to look into whether pursuant to § 5K1.1, the district court had the authority to go below the mandatory minimum in sentencing Ellerby and consult with Ellerby on whether he desired to withdraw his objections to the PSR in exchange for the sentence reduction pursuant to the § 5K1.1 motion. J.A. 74. At the second sentencing hearing, which occurred over ten months later, trial counsel did not object to the district court imposing consecutive sentences for counts one and two, and Ellerby received a § 5K1.1 sentence reduction. J.A. 93. Consequently, Ellerby cannot show that his counsel's initial confusion regarding the sentence for count two prejudiced him at his sentencing, ten months later, when the district court gave notice to Ellerby that count two's sentence must run consecutive to count one and afforded Ellerby time to reconsider his withdrawal of the objections.
For the foregoing reasons, the Court affirms Ellerby's convictions and sentence. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.