                                                       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that this opinion should not be published and is not precedent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.
