United States v. Moody

Opinion

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.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Mississippi USDC No. 2:96-CV-117PS - - - - - - - - - - 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.