United States v. Blount , 159 F. App'x 591 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 30, 2005
Charles R. Fulbruge III
Clerk
No. 04-30860
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOREA DELENE McNAMEE BLOUNT,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:03-CV-1616-DEW-RSP
USDC No. 5:01-CR-50073-DEW-RS
--------------------
Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jorea Delene McNamee Blount, a federal prisoner (# 11023-
035), appeals from the district court’s sua sponte denial of her
28 U.S.C. § 2255 motion to vacate her 2001 jury-trial convictions
and sentences for conspiracy to commit mail fraud and wire fraud
and six counts of mail fraud. Blount received a total prison
sentence of 84 months and three years of supervised release.
Blount was granted a certificate of appealability as to her claim
that her attorney performed ineffectively at sentencing and on
appeal by failing to raise an adequate challenge to the district
*
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that this opinion should not be published and is not precedent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. 04-30860
-2-
court’s upward departure from the Sentencing Guidelines
imprisonment range. Blount has argued that the upward departure
was based on factors that were duplicative of factors that had
already been taken into consideration by the district court in
determining her Guideline range. She has contended that her
attorney’s challenges to this “double counting” were
unconstitutionally inadequate.
To prevail on a claim of ineffective assistance of counsel,
a movant must show (1) that counsel’s performance was deficient
in that it fell below an objective standard of reasonableness and
(2) that the deficient performance prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 689-94 (1984). When
assessing whether an attorney’s performance was deficient, the
court “must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional
assistance.” Id. at 689. To show Strickland prejudice, a movant
must demonstrate that counsel’s errors were so serious as to
“render[ ] the result of the trial unreliable or the proceeding
fundamentally unfair.” Lockhart v. Fretwell, 506 U.S. 364, 372
(1993). A failure to establish either deficient performance or
prejudice defeats the claim. Strickland, 466 U.S. at 697. In
the context of sentencing, the movant must demonstrate a
reasonable probability that, but for counsel’s errors with
respect to sentencing matters, he would received less time in
prison. See United States v. Grammas, 376 F.3d 433, 438 (5th
Cir. 2004); Glover v. United States, 531 U.S. 193, 203 (2001).
To show she was prejudiced by deficient performance on direct
No. 04-30860
-3-
appeal, Blount must demonstrate a reasonable probability that the
claim would have been successful on appeal, a standard that
“requires [the court of appeals to] counter-factually determine
the probable outcome on appeal. . . .” United States v.
Dovalina, 262 F.3d 472, 474 (5th Cir. 2001) (citation and
internal quotation marks omitted).
Blount has not established deficient performance by her
attorney with respect to sentencing, because the record on appeal
reflects that counsel filed a letter challenging the proposed
upward departure on the same substantive grounds that Blount has
been asserting in her 28 U.S.C. § 2255 motion.
The record does show that, on direct appeal, counsel had
inadequately briefed a challenge to the upward departure such
that we determined that Blount had effectively abandoned the
claim. Blount has not established, however, that she was
prejudiced by any deficient performance relating to failing to
raise such a challenge. A district court is permitted to depart
upward from the Guideline range if it finds that an aggravating
circumstance exists that was “not adequately taken into
consideration by the Sentencing Commission.” 18 U.S.C.
§ 3553(b); see also U.S.S.G. § 5K2.0. “A district court abuses
its discretion, and incorrectly applies the guidelines, where it
relies on an invalid departure ground.” United States v. Cade,
279 F.3d 265, 270 (5th Cir. 2002). A court may not grant an
upward departure on the basis of a factor already taken into
account by the guidelines, “unless that factor is present to an
exceptional degree or in some other way makes the case different
No. 04-30860
-4-
from the ordinary case in which the factor is present.” United
States v. Hemmingson, 157 F.3d 347, 361 (5th Cir. 1998) (citation
omitted). In such circumstances, a remand is appropriate unless
the reviewing court concludes, based on the record as a whole,
“‘that the error was harmless, i.e., that the error did not
affect the district court’s selection of the sentence imposed.’”
United States v. Solis, 169 F.3d 224, 226 (5th Cir. 1999).
Although the district court may have based its upward
departure at least partially on factors that were duplicative of
offense-level increases that already had been imposed upon
Blount, the departure was also based on factors that were not
adequately considered by the Guidelines. Moreover, the extent of
the departure, which amounted to only a three-level increase of
Blount’s offense level, was not unreasonable. Cf. United States
v. Daughenbaugh, 49 F.3d 171, 174-75 (5th Cir. 1995). Blount has
not established a reasonable probability that a full-scale
challenge by counsel to the upward departure on direct appeal
would have prevailed. Accordingly, she has not established
prejudice, and her ineffective-assistance claim is meritless.
The order of the district court is AFFIRMED.