United States v. Christopher Ellerby , 492 F. App'x 398 ( 2012 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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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
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“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.)
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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”).
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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
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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
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