IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-41428 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DAVID LEWIS MARTIN,

Defendant-Appellant.

-------------------- Appeals from the United States District Court for the Southern District of Texas USDC No. C-98-CR-245-2 --------------------

September 2, 1999

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

PER CURIAM:*

David Lewis Martin appeals his conviction, arguing that his

plea was not knowing and voluntary because (1) the district court

mistakenly overstated the minimum sentence at the Rule 11

hearing, (2) the district court mistakenly stated that it could

not grant a U.S.S.G. § 5K1.1, p.s., downward departure from

Martin’s mandatory consecutive sentence for using a firearm in

connection with a drug trafficking offense, and (3) the plea was

induced by a “promise” of a 73-month sentence. Martin also

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 98-41428 -2-

argues that he was denied effective assistance of counsel because

counsel failed to raise these issues at sentencing.

Martin has not alleged that he would have pleaded

differently if he had had the full and correct information about

the sentence. See United States v. Bond,

(5th

Cir. 1996). The full and correct information about the minimum

sentence was available to Martin in the plea agreement.

Furthermore, logic dictates that if Martin were willing to plead

guilty thinking that his minimum sentence would be 10 years he

would also be willing to plead guilty if he thought that the

minimum sentence were 5 years. Cf. United States v. Williams,

(5th Cir. 1997)(maximum sentences), United

States v. Pierce,

(5th Cir. 1993)(maximum

sentences).

The plea agreement was explicit that the decision whether to

move for a downward departure was in the discretion of the

Government and that the decision regarding the extent of any

departure was in the discretion of the court. The court

specifically admonished Martin that he might never receive any

benefit from cooperating with the Government. In light of these

statements, any error made by the district court in stating how

the downward departure would be calculated was harmless. The

plea agreement and Rule 11 colloquy both demonstrate that no

“promise” of a 73-month sentence was made to Martin to induce his

guilty plea.

Because any errors made by the court in conducting the Rule

11 colloquy were harmless, Martin has not shown that he suffered No. 98-41428 -3-

any prejudice from counsel’s error in failing to object. See

Strickland v. Washington,

(1984).

AFFIRMED.