                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-2449
                                   ___________

Scott Christopher Cook,                *
                                       *
            Petitioner – Appellant,    *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * Northern District of Iowa.
United States of America,              *
                                       * [UNPUBLISHED]
            Respondent – Appellee.     *
                                  ___________

                             Submitted: February 10, 2009
                                Filed: February 19, 2009
                                 ___________

Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.
                             ___________

PER CURIAM.

      Scott Christopher Cook appeals the district court's1 order denying his 28 U.S.C.
§ 2255 motion to vacate, set aside, or correct his sentence. We affirm.

                                          I

       On February 24, 2005, Cook was indicted for conspiring to manufacture and
distribute fifty grams or more of methamphetamine within 1,000 feet of a protected


      1
      The Honorable Donald E. O'Brien, United States District Judge for the
Northern District of Iowa.
zone from February 1997 through January 2004 in violation of 21 U.S.C. §§ 841, 846,
859, and 860. The Government filed a § 851 notice of its intention to seek an
enhanced penalty based on Cook's prior state felony conviction for possession with
intent to deliver methamphetamine, which increased Cook's potential sentence to a
mandatory minimum of 240 months imprisonment. See 21 U.S.C. § 841(b)(1)(A).
Cook pleaded guilty and was sentenced to the mandatory minimum sentence. At
sentencing, Cook's counsel did not object to the enhancement. Cook appealed his
sentence, which was affirmed. United States v. Cook, 447 F.3d 1127 (8th Cir. 2006).

       On May 9, 2007, Cook filed a motion under 28 U.S.C. §2255 to vacate, set
aside, or correct his sentence on the basis of ineffective assistance of counsel.
Specifically, he alleges his trial counsel was ineffective because he: (1) failed to object
to, and thus preserve for appeal, the issue of whether his prior state conviction should
be counted as a prior felony conviction for sentencing enhancement purposes; and (2)
told Cook he would not receive the 240 month mandatory minimum sentence if he
accepted the plea agreement because the government would file a motion for
downward departure for substantial assistance. After an evidentiary hearing, the
district court denied Cook's motion. This appeal followed.

                                            II

       "We review the district court's factual findings for clear error and the legal
question whether those findings amount to ineffective assistance de novo." Keys v.
United States, 545 F.3d 644, 646 (8th Cir. 2008). To prevail on an ineffective
assistance claim, Cook must show (1) counsel's representation fell below an objective
standard of reasonableness, and (2) counsel's deficient performance was prejudicial.
See Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); Keys, 545 F.3d at 646.

       Cook contends his trial counsel was ineffective because he failed to object to
the sentencing enhancement for his prior conviction. We disagree. In cases where the


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charged conspiracy began before and continued after a defendant's felony drug
conviction, the felony drug conviction may be considered a "prior" conviction for
purposes of applying a § 851 sentencing enhancement if the defendant committed an
overt act in furtherance of the conspiracy after the date of the conviction. United
States v. Pratt, --- F.3d ---, 2009 WL 196445, at *3 (Jan. 29, 2009); United States v.
Funchess, 422 F.3d 698, 703 (8th Cir. 2005); United States v. Titlbach, 339 F.3d 692,
697 (8th Cir. 2003). Here, Cook was convicted on June 30, 2003, for possession with
intent to deliver methamphetamine, and admitted selling methamphetamine on
December 4, 2003. Therefore, Cook admitted he committed an overt act in
furtherance of the conspiracy after the date of his state felony conviction. Although
trial counsel may be ineffective for failing to object at sentencing, see Auman v.
United States, 67 F.3d 157, 162 (8th Cir. 1995), counsel is not ineffective for failing
to make a futile objection, see Woodall v. United States, 72 F.3d 77, 80 (8th Cir.
1995), Flieger v. Delo, 16 F.2d 878, 887 (8th Cir. 1994), Thomas v. United States, 952
F.3d 902, 905 (8th Cir. 1991).

         Cook also asserts his counsel was ineffective for stating that, if Cook signed the
plea agreement, he would receive a sentence lower than the mandatory minimum
sentence. We again disagree. Cook was aware he was subject to a mandatory
minimum sentence and that filing a substantial assistance motion, which he knew was
the only basis to receive a sentence below the mandatory minimum, was solely within
the discretion of the government. In addition, the district court found Cook's trial
counsel did not promise Cook "that he would receive a substantial assistance motion
or, . . . that his sentence would be less than 20 years if he signed the plea agreement."
The district court's findings of fact are supported by the record, and Cook has
presented no basis for us to conclude they are clearly erroneous.

       In addition, Cook has not demonstrated "there is a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty and would have insisted on
going to trial." Hill v. Lockhart, 474 U.S. 52, 59 (1985). Cook did not testify or


                                           -3-
submit an affidavit so asserting. As such, his ineffective assistance claim fails. See
Gingras v. Weber, 543 F.3d 1001, 1004 (8th Cir. 2008); United States v. Davis, 508
F.3d 461, 463 (8th Cir. 2007).

                                         III

      We affirm the district court.
                      ______________________________




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