US v. Matt Davis, No. 16-4289 (4th Cir. 2016)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 16-4289 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MATT DAVIS, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:13-cr-00043-MR-DLH-1) Submitted: October 18, 2016 Decided: October 20, 2016 Before WILKINSON, KING, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM Matt Davis pled guilty in accordance with a written plea agreement to conspiracy to possess with intent to distribute bath salts. He was sentenced to 156 months of imprisonment pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C). Davis appeals and his attorney has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), concluding that there are whether: no (1) conducting meritorious the Davis’ issues district plea for court hearing; appeal, complied (2) Davis’ but with questioning Rule decision 11 to in pled guilty was the product of ineffective assistance of counsel; and (3) Davis’ guilty misconduct. plea was involuntary due to prosecutorial We affirm. Because Davis did not attempt to withdraw his guilty plea in the district court, we review this issue for plain error, see United States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002) (stating standard), and find none. hearing with reveals Rule 11 it and was that conducted Davis A review of Davis’ plea substantially knowingly and in compliance voluntarily pled guilty. Regarding Davis’ ineffective assistance claim, it is well established that a defendant may raise a claim of ineffective assistance of conclusively counsel appears on from direct the appeal record 2 if that and only counsel if did it not provide effective assistance. F.3d 238, 241 ineffective (4th Cir. assistance United States v. Galloway, 749 2014). claims Absent should be such a raised showing, in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit sufficient development of the record. United States Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). record does not conclusively show that v. Here, the counsel provided ineffective assistance; thus, the claim is properly raised, if at all, in a § 2255 motion rather than on direct appeal. To establish prosecutorial misconduct, Davis must demonstrate that the prosecutor’s conduct was improper and that it prejudicially affected his substantial rights. United States v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010); see also United States v. presumption Armstrong, of 517 regularity U.S. accorded 456, 464 (1996) prosecutorial (noting decisions). Because Davis did not raise this issue in the district court, our review is for plain error, United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005), and we find none. Pursuant to Anders, we have reviewed the entire record and have found no meritorious issues for appeal. * Accordingly, we deny and Davis’ motion to strike counsel’s * brief affirm the This includes review of the issues raised in Davis’ pro se supplemental brief. 3 district court’s judgment. This court requires that counsel inform Davis, in writing, of the right to petition the Supreme Court of the United States for further review. If Davis 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 Davis. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 4
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