US v. Damon McDuffie, No. 12-4322 (4th Cir. 2012)
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Filed: November 29, 2012 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4322 (3:10-cr-01031-JFA-1) UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAMON D. MCDUFFIE, Defendant - Appellant. O R D E R The Court amends its opinion filed November 29, 2012, as follows: On page 2, first line of text -- armed robbery is corrected to read extortion. For the Court By Direction /s/ Patricia S. Connor Clerk UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4322 UNITED STATES OF AMERICA, Plaintiff Appellee, v. DAMON D. MCDUFFIE, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Joseph F. Anderson, Jr., District Judge. (3:10-cr-01031-JFA-1) Submitted: November 19, 2012 Before WILKINSON and Senior Circuit Judge. THACKER, Decided: Circuit November 29, 2012 Judges, and HAMILTON, Affirmed in part; dismissed in part by unpublished per curiam opinion. Allen B. Burnside, Assistant Federal Public Defender, Columbia, South Carolina, for Appellant. Mark C. Moore, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Damon D. McDuffie pled guilty to extortion in violation of 18 U.S.C. § 1951 (2006). McDuffie s written plea agreement of included a Federal Rule Criminal Procedure 11(c)(1)(C) stipulated sentence of fifteen months imprisonment. The district court imposed the stipulated sentence. McDuffie then filed this timely appeal. McDuffie s attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal but asking this court to consider misconduct whether by the allowing Government McDuffie engaged in to debriefed be prosecutorial while represented by an attorney who was himself the target of an investigation. McDuffie has filed a pro se brief also asserting prosecutorial misconduct on this ground, but disagreeing with counsel s assessment that such issue lacks merit. asserts ineffective assistance of counsel. declined to file a brief. * Because we McDuffie also The government has find no meritorious grounds for appeal, we affirm. * The government has not sought enforcement of the waiver of appellate rights in the plea agreement. See United States v. Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (recognizing that the government may file a responsive brief raising the appellate waiver issue or do nothing and allow this Court to perform the Anders review). 2 This court review[s] for plain error a prosecutorial misconduct claim that was not raised or presented to the trial court. United Cir. 2005). States v. Alerre, 430 F.3d 681, 689 (4th To succeed on a claim of prosecutorial misconduct, a defendant must show that the prosecutor engaged in improper conduct and that such conduct prejudiced the defendant s substantial rights so as to deny the defendant a fair trial. Id. We have thoroughly reviewed the record and find no improper conduct on the part of the prosecutor. Additionally, we have reviewed McDuffie s claim of ineffective assistance of counsel and find that the record ineffective assistance. does not conclusively establish Accordingly, the ineffective assistance claim is not cognizable on direct appeal, and must be brought in a motion under 28 U.S.C.A. § 2255 (West Supp. 2012). See United States v. Baptiste, 596 F.3d 214, 216-17 n.1 (4th Cir. 2010). Next, we McDuffie s sentence. conclude we lack jurisdiction to review The federal statute governing appellate review of a sentence, 18 U.S.C. § 3742(c) (2006), limits the circumstances under which a defendant may appeal a sentence to which he stipulated in a Rule 11(c)(1)(C) plea agreement to claims that the sentence was imposed in violation of law or as a result of an incorrect application of the sentencing guidelines. United States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir. 1998); United States v. Littlefield, 105 F.3d 527, 527-28 (9th 3 Cir. 1997). Here, McDuffie s sentence did not exceed the applicable statutory maximum, and was the precise sentence he had bargained for with the Government. Thus, review of his sentence is precluded by § 3742(c). Finally, we have reviewed the remaining issues raised in McDuffie s pro se brief and find them to be without merit. In accordance with Anders, we have reviewed the record in this case and found no meritorious issues for appeal. affirm McDuffie s conviction and dismiss extent he challenges his sentence. his We therefore appeal to the This court requires that counsel inform McDuffie in writing of the right to petition the Supreme Court of the United States for further review. If McDuffie requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on McDuffie. Finally, we deny McDuffie s motion for release pending appeal and dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED IN PART; DISMISSED IN PART 4
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