                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0281n.06

                                             No. 11-3745                                      FILED

                              UNITED STATES COURT OF APPEALS                             Mar 13, 2012
                                   FOR THE SIXTH CIRCUIT                          LEONARD GREEN, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )
        Plaintiff-Appellee,                            )       ON APPEAL FROM THE UNITED
                                                       )       STATES DISTRICT COURT FOR
v.                                                     )       THE SOUTHERN DISTRICT OF
                                                       )       OHIO
KEIRON ASHURST,                                        )
                                                       )
        Defendant-Appellant.                           )




        Before: KEITH, MARTIN, and BOGGS, Circuit Judges.



        PER CURIAM. Keiron Ashurst pled guilty to conspiracy to commit wire and mail fraud in

violation of 18 U.S.C. § 1349. On appeal, Ashurst challenges the voluntariness of his plea. For the

reasons set forth below, we affirm the district court’s judgment.

        Ashurst’s plea was made pursuant to a plea agreement. The parties agreed that Ashurst was

entitled to a reduction for acceptance of responsibility, that his base offense level should be increased
by ten levels based on a total loss amount of between $120,000 and $200,000, and that he was

entitled to a four-level reduction because of his minimal role in the criminal activity. The

calculations in the presentence report were the same as those in the plea agreement, except that the

probation officer calculated the total loss amount as $238,500, resulting in an additional two-level

increase in Ashurst’s base offense level. See USSG § 2B1.1(b)(1)(G). This calculation resulted in

a total offense level of thirteen, which, when combined with Ashurst’s criminal history category of

II, yielded an advisory sentencing guidelines range of fifteen to twenty-one months of imprisonment.

        At sentencing, the district court sustained Ashurst’s objection to the higher loss calculation,

reducing Ashurst’s total offense level to eleven and his sentencing guidelines range to ten to sixteen
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months of imprisonment. Ashurst sought a non-custodial sentence, citing his limited involvement

in the conspiracy and his family responsibilities. The district court denied the request, and sentenced

Ashurst to twelve months and one day in prison, to be followed by three years of supervised release.

       After receiving his sentence, Ashurst filed a series of pro se motions seeking to set aside his

guilty plea based on claims of ineffective assistance of counsel and prosecutorial misconduct. The

district court denied the motions in marginal orders.

       On appeal, Ashurst argues that his plea should be vacated because his counsel was ineffective

for coercing him into pleading guilty, promising that he would receive a probationary sentence,

refusing to move to withdraw his plea, and failing to advise him of the possibility of deportation as

a consequence of pleading guilty. Alternatively, Ashurst argues that the district court abused its

discretion by denying his motion to withdraw his guilty plea without first holding an evidentiary

hearing.

       “A guilty plea can be involuntary as a result of the ineffective assistance of counsel.” United

States v. Gardner, 417 F.3d 541, 545 (6th Cir. 2005). But we will review claims of ineffective

assistance on direct appeal only in those “rare cases where the error is apparent from the existing

record.” United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006). Such claims are

properly raised in a motion for post-conviction relief under 28 U.S.C. § 2255. Massaro v. United

States, 538 U.S. 500, 504-05 (2003); Gardner, 417 F.3d at 545. The alleged ineffectiveness of

Ashurst’s counsel is not apparent from the existing record, which contains no evidence regarding
why counsel did not file additional motions or what advice, if any, counsel provided concerning

Ashurst’s sentencing exposure and the immigration consequences of his plea. Accordingly, we

decline to consider Ashurst’s claims of ineffective assistance of counsel on direct appeal. See Lopez-

Medina, 461 F.3d at 737; Gardner, 417 F.3d at 545.

       To the extent that Ashurst challenges the district court’s denial of his motion to withdraw his

guilty plea, his arguments are without merit. The district court could not grant Ashurst’s motion

because it was made after he was sentenced. Under Federal Rule Criminal Procedure 11(e), “[a]fter

the court imposes sentence, the defendant may not withdraw a plea of guilty or nolo contendere, and
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the plea may be set aside only on direct appeal or collateral attack.” Accordingly, the district court

did not abuse its discretion by denying Ashurst’s motion to withdraw his guilty plea without an

evidentiary hearing.

       We affirm the district court’s judgment.
