United States v. Nelson Osemwengie

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NOT FOR PUBLICATION MAY 22 2014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