                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 06-6282



UNITED STATES OF AMERICA,

                                               Plaintiff - Appellee,

          versus


DANETTE LAVAINE MAYFIELD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L. Voorhees,
District Judge. (5:98-cr-00164-11; 5:01-cv-00083)


Submitted:   November 22, 2006            Decided:   December 7, 2006


Before WILLIAMS and TRAXLER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Vacated and remanded in part; affirmed in part by unpublished per
curiam opinion.


Michael L. Waldman, FRIED, FRANK, HARRIS, SHRIVER & JACOBSON, LLP,
Washington, D.C., for Appellant. Robert Jack Higdon, Jr., OFFICE OF
THE UNITED STATES ATTORNEY, Raleigh, North Carolina; Amy Elizabeth
Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Danette    Lavaine    Mayfield      appeals      from     the   district

court’s order denying her 28 U.S.C. § 2255 (2000) motion.                              We

previously granted a certificate of appealability on two issues:

(1) whether the district court erred in dismissing as time barred

Mayfield’s claim that her attorney was ineffective for failing to

object    to     criminal     history      points    added      for    her     juvenile

convictions and (2) whether trial counsel was ineffective for

failing to move for a downward departure on the ground that

Mayfield’s criminal history category substantially over-represented

her    criminal    record.         With   regard     to   the    first     issue,    the

Government concedes that the claim was incorrectly dismissed as

untimely.       Thus, we vacate this portion of the district court’s

order and remand for consideration of the merits of the claim.

Turning to the second issue, after a review of the record and the

parties’ briefs, we conclude that Mayfield cannot show prejudice

from any error by her attorney in failing to move for a downward

departure.      See Strickland v. Washington, 466 U.S. 668, 687 (1984)

(providing      standard     for    establishing      ineffective        assistance).

Thus, we affirm the portion of the district court’s order rejecting

this    claim.       We    grant    the    Government’s         motion    to    file    a

supplemental appendix.         We dispense with oral argument because the

facts    and    legal     contentions     are     adequately     presented      in     the




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materials   before   the   court   and     argument   would   not   aid   the

decisional process.



                                           VACATED AND REMANDED IN PART;
                                                        AFFIRMED IN PART




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