                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-6212


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

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.   (5:01-cv-00083-RLV; 5:98-cr-00164-
RLV-11)


Submitted:    February 9, 2009              Decided:      April 8, 2009


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


Vacated and remanded by unpublished per curiam opinion.


Michael L. Waldman, Brian A. Pérez-Daple, ROBBINS, RUSSELL,
ENGLERT, ORSECK, UNTEREINER & SAUBER, LLP, Washington, D.C., for
Appellant. Gretchen C. F. Shappert, United States Attorney, Adam
Morris, Assistant United States Attorney, Charlotte, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Danette   Mayfield     appeals        from   the    district    court’s

order denying her 28 U.S.C.A. § 2255 (West Supp. 2008) motion.

Previously, we resolved all of Mayfield’s claims but one: that

her   attorney      rendered   ineffective          assistance      of    counsel    by

failing to object to the inclusion of two juvenile convictions

in the calculation of her criminal history category.                       As to that

claim, we found that the district court had improperly dismissed

it as untimely, and we remanded for consideration of the claim

on its merits.       See United States v. Mayfield, No. 06-6282 (4th

Cir. Dec. 7, 2006) (unpublished).

              On remand, the district court sua sponte entered a

final order, finding that Mayfield could not show prejudice from

any   error    of   counsel.       Specifically,         the    court    stated   that,

because Mayfield pled guilty, she was required to show that “but

for   counsel’s      alleged   errors,          this     petitioner       would     have

insisted on a trial,” citing Hill v. Lockhart, 474 U.S. 52, 59

(1985).       The   court   then    went       on   to   note    that    Mayfield   had

“[i]ncredibly” “not bothered to assert or even to hint that but

for this alleged error, she would have insisted upon going to

trial.”   Finding that there was little likelihood that Mayfield

would have demanded a trial absent counsel’s alleged error, the

court rejected Mayfield’s claim.



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             On appeal, the parties agree that the district court

applied the wrong legal standard.               While ineffective assistance

claims in the guilty plea context are usually evaluated under

the standards announced in Hill, Mayfield does not challenge her

counsel’s actions in relation to the entry of her guilty plea.

Instead,     because     Mayfield        argues    that        her     attorney          was

ineffective at sentencing, the standard Strickland analysis is

appropriate.       See Strickland v. Washington, 466 U.S. 668, 687

(1984)   (movant    must   show    that       attorney’s    conduct         fell    below

objective     standard     of    reasonableness      and       that     there       is     a

reasonable probability that, absent these errors, the result of

the proceeding would have been different); see also Royal v.

Taylor, 188 F.3d 239, 248-49 (4th Cir. 1999) (noting that Hill

standard    applies    only     during    “challenge      to    guilty       plea”       and

applying    Strickland     to    ineffective       assistance          at   sentencing

claim,     requiring   only     that     “sentence     would         have   been     more

lenient” absent counsel’s errors).

             Accordingly, we vacate the district court’s order and

remand for consideration of Mayfield’s claim under the proper

standard.     Although the parties suggest that we may decide the

matter on the record before us in the first instance, we find

that there is a factual issue which must be determined by the

district court prior to the application of the Strickland legal

analysis.      Specifically,      on     remand,   the     district         court    must

                                          3
determine when Mayfield commenced her conduct for the offense of

conviction, in accordance with U.S. Sentencing Guidelines Manual

§ 4A1.2(d)(2) (1998).          Once this factual dispute is resolved,

the district court can proceed to address whether counsel was

ineffective    for     failing     to   object   to    the    inclusion     of   the

juvenile   convictions        in   Mayfield’s    criminal      history     category

calculation.     We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the   court    and    argument      would    not    aid   the   decisional

process.

                                                            VACATED AND REMANDED




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