United States v. Moody ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60087
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MAXINE MOODY,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 2:96-CV-117PS
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April 28, 1998
Before DUHÉ, DEMOSS and DENNIS, Circuit Judges.
PER CURIAM:*
Maxine Moody, federal prison # 03620-043, appeals the district
court’s denial of her motion to vacate, set aside, or correct her
sentence under 28 U.S.C. § 2255. She argues that 1) she received
ineffective assistance of counsel, 2) the sentencing court erred by
refusing to grant the Government’s motion for a downward departure,
and 3) the Government breached the plea agreement when it did not
object to the sentencing court’s refusal to grant the motion for a
*
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that this opinion should not be published and is not precedent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. 97-60087
-2-
downward departure and when it did not resubmit the motion within
a year of the judgment of Moody’s sentence.
Moody’s ineffective-assistance-of-counsel claims are
unsupported by the record, and she failed to establish that her
attorney’s performance was deficient or how she was prejudiced by
her attorney’s conduct. See Strickland v. Washington, 466 U.S.
668, 687 (1984). Her claim that the Government breached the plea
agreement is refuted by the record and without merit.
Moody’s argument that the district court improperly applied
the Sentencing Guidelines and refused to grant the motion for a
downward departure under U.S.S.G. § 5K1.1 does not give rise to a
constitutional issue cognizable in a § 2255 proceeding. United
States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994).
Moody’s motion to supplement the record on appeal is DENIED.
AFFIRMED.