                                                                             FILED
                              NOT FOR PUBLICATION                             MAY 22 2014

                                                                          MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 13-15700

               Plaintiff - Appellee,              D.C. No. 2:12-cv-01024-MMD

  v.
                                                  MEMORANDUM*
NELSON OSEMWENGIE,

               Defendant - Appellant.


                      Appeal from the United States District Court
                               for the District of Nevada
                       Miranda M. Du, District Judge, Presiding

                                Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       Federal prisoner Nelson Osemwengie appeals pro se from the district court’s

order denying his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence.

We have jurisdiction under § 2253. We review de novo a district court’s denial of a




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
              The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
section 2255 motion, see United States v. Manzo, 675 F.3d 1204, 1209 (9th Cir. 2012),

and we affirm.

       Osemwengie contends that his counsel was ineffective for failing to advise him

adequately during plea negotiations. This contention fails because Osemwengie has

not shown a reasonable probability that, but for counsel’s conduct, he would have

received a shorter sentence. See Strickland v. Washington, 466 U.S. 668, 694 (1984);

see also Missouri v. Frye, 132 S. Ct. 1399, 1409 (2012) (to establish prejudice where a

plea offer has been rejected because of counsel’s deficient performance, defendant

must show “a reasonable probability that the end result of the criminal process would

have been more favorable by reason of a plea to a lesser charge or a sentence of less

prison time”).

      Osemwengie also contends that his counsel was ineffective for failing to request

credit toward his sentence for the time he spent in pretrial detention. This contention

is unpersuasive. Under 18 U.S.C. § 3585(b), a defendant is not entitled to credit for

time served in pretrial detention if that time has been credited against another sentence.

Moreover, the terms of Osemwengie’s plea agreement prohibited him from seeking

any downward departure or variance from the Guideline range. Accordingly,

Osemwengie has not established either deficient performance or prejudice. Strickland,

466 U.S. at 687.

      AFFIRMED.

                                            2                                      13-15700
