                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 11-5097


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

CHRISTOPHER ELLERBY,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:10-cr-00088-FL-1)


Submitted:   June 20, 2012                 Decided:   August 1, 2012


Before GREGORY, WYNN, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Mark A. Jones, BELL, DAVIS & PITT, PA, Winston-Salem, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, OFFICE OF THE UNITED STATES ATTORNEY,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
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.



                                                   I.

       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 Wade v.

United States, 504 U.S. 181 (1992).                            In Wade, the Supreme Court

held that “federal district courts have authority to review a

prosecutor’s refusal to file a substantial-assistance motion and

grant a remedy if they find that the refusal was based on an

unconstitutional           motive,”       such          as     the        defendant’s        race      or

religion.           504 U.S. at 185-86.                      The Court determined that a

defendant must make a “substantial threshold showing” in meeting

                                                        2
this burden and would not be entitled to relief on the basis

that    he     provided       substantial           assistance          or    on    “generalized

allegations of improper motive.”                         Id. at 186.         This Circuit has

interpreted Wade to allow the Government to refuse to file a

§ 5K1.1 motion “so long as it provides any legitimate reason,

even one unrelated to the defendant’s ‘substantial assistance.’”

United    States       v.   Divens,          650    F.3d      343,     345   (4th     Cir.    2011)

(citing United States v. Butler, 272 F.3d 683 (4th Cir. 2001)).

Accordingly, under this precedent, a defendant must show that

the government’s refusal to file a § 5K1.1 motion is improper

because       the    refusal     emanates          from       either    unconstitutional         or

non-legitimate motives.

       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 Wade and Butler do apply in this context, Ellerby has not

met     his     burden      under       the        plain-error          standard       that     the

Government’s          condition         is     based          on   some      motive     that    is

unconstitutional or not related to a legitimate government end.

Ellerby must show that imposing this condition on a defendant is

an     error    and       that    the    error           is    “clear,       or    equivalently,

obvious.”           United States v. Olano, 507 U.S. 725, 734 (1993)

(internal quotation marks omitted).                           Ellerby admits that this is

                                                         3
“a matter of first impression.”                Appellant Br. 1.         He contends

that the Government did not have a legitimate reason to use a

“bargaining” tactic that would result in the sentencing court

not    formally       considering      the     evidence    and    the     arguments

supporting      his     PSR    objections.          Beyond    this      contention,

Ellerby’s      arguments      are   vague.     He   does   not    argue    that   the

Government’s conduct violated the Constitution nor does he point

to any case law or statute that supports his argument that the

Government’s conduct is not related to a legitimate government

end.       He further does not contend that the Government’s conduct

amounts to prosecutorial bad faith or that it was an arbitrary

decision.       In order to meet the second limitation under the

plain-error      standard,      Ellerby      must   show   that   the     error   was

“clear under current law,” which he has not done here.                       Olano,

507 U.S. at 734. *




       *
        In addition to the error not being plain, Ellerby is
unlikely to show that his substantial rights were affected and
that a failure to cure such an error would seriously affect the
reputation of the judicial system. See Olano, 507 U.S. at 732.
Here, the district court forecasted its ruling on three of the
four objections, finding that it was inclined to overrule the
objections based on the evidence before it.        Further, the
district court did not address Ellerby’s objection to the
cocaine quantity because it was a “factual objection,” and the
substance of his objection to the quantity –- that the drug
quantity was an overestimate –- would not necessarily have led
the district court to discover the clerical error within the PSR
(Cont.)
                                              4
                                              II.

       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, United States

v. Baptiste, 596 F.3d 214, 216 n. 1 (4th Cir. 2010), and the

Court will only grant Ellerby relief if “it conclusively appears

from     the     record       that   counsel            did     not     provide       effective

assistance,” United States v. Martinez, 136 F.3d 972, 979-80

(4th Cir. 1998).

       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


(using the word “grams” instead of “ounces” to describe the drug
quantity for a “big 8”).


                                                    5
any evidence within the record, not even a sworn affidavit that

indicates    his    counsel    misadvised        him    regarding       his   sentence

prior to him entering into the plea agreement.

     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.

See United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995)

(finding that the defendant had not been prejudiced by counsel’s

misadvice    regarding       his   sentence      because        the   district      court

provided     a    “careful     explanation”        of     the     severity     of    the

sentence).        Accordingly,     Ellerby       cannot    demonstrate        that    his

Sixth Amendment rights were violated under these circumstances.

     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

                                             6
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.



                                            III.

      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.

                                                                                       AFFIRMED




                                                     7
