UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-50322
Summary Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NAKUNDA LATRICE BLUE,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(W-96-CA-410)
_________________________________________________________________
October 16, 1998
Before KING, BARKSDALE, and STEWART, Circuit Judges.
PER CURIAM:*
Nakunda Latrice Blue, who pleaded guilty to possession with
intent to distribute cocaine, appeals the denial of her 28 U.S.C.
§ 2255 motion. Our court granted Blue a certificate of
appealability limited to whether her § 2255 motion was time-bared;
and whether she received ineffective assistance of counsel because
her attorney failed to assert that she was entitled to an
additional two-level reduction in her base offense level pursuant
to U.S.S.G. § 2D1.1(b)(4) (now 2D1.1(b)(6)) and failed to correct
*
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that this opinion should not be published and is not precedent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.
the district court’s mistaken impression that it did not have the
discretion to depart downward.
Blue’s § 2255 motion was not time-barred. See United States
v. Flores, 135 F.3d 1000, 1002-06 (5th Cir. 1998). She has not
shown, however, that her attorney’s performance was deficient
because he failed to assert the applicability of a guideline
provision that had not yet become effective or, as claimed for the
first time on appeal (which we review only for plain error),
because he failed to request a continuance pending the enactment of
that provision. See United States v. Flores-Ochoa, 139 F.3d 1022,
1024 (5th Cir.), cert. denied, ___ U.S. ___, 118 S. Ct. 2383
(1998). In addition, the record does not support Blue’s assertion
that the district court mistakenly believed that it did not have
the discretion to depart downward. Accordingly, she has not
demonstrated that her attorney rendered ineffective assistance by
failing to correct the purported mistaken impression. See United
States v. McKinney, 53 F.3d 664, 677 (5th Cir.), cert. denied, 516
U.S. 901 (1995).
AFFIRMED
- 2 -