3:10-cr-01031-JFA-1) UNITED STATES OF AMERICA v. Damon D. McDuffie

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

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UNPUBLISHED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 Decided: November 29, 2012
Before WILKINSON and THACKER, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam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Unpublished opinions are not binding precedent in this circuit.

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2
PER CURIAM:
Damon D. McDuffie pled guilty to extortion in
violation of 18 U.S.C. § 1951 (2006). McDuffie’s written plea
agreement included a Federal Rule of 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 whether the Government engaged in prosecutorial
misconduct by allowing McDuffie to be debriefed 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. McDuffie also
asserts ineffective assistance of counsel. The government has
declined to file a brief.* Because we 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).

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This court “review[s] for plain error a prosecutorial
misconduct claim that was not raised or presented to the trial
court.” United States v. Alerre, 430 F.3d 681, 689 (4th
Cir. 2005). 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 does not conclusively establish
ineffective assistance. 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 conclude we lack jurisdiction to review
McDuffie’s sentence. 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

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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. We therefore
affirm McDuffie’s conviction and dismiss his appeal to the
extent he challenges his sentence. 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

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