                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-5015


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

CHRISTOPHER EUGENE HARRIS,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00115-LHT-1)


Submitted:    April 24, 2009                  Decided:   May 13, 2009


Before MOTZ, KING, and GREGORY, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Sandra J. Barrett, Asheville, North Carolina, 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Unpublished opinions are not binding precedent in this circuit.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:

               Christopher Eugene Harris pleaded guilty pursuant to a

plea     agreement          to    conspiracy        to       possess        with       intent     to

distribute cocaine base (“crack”), in violation of 21 U.S.C.

§ 846    (2006),       and       possession    of        a   firearm        by    a    felon,     in

violation of 18 U.S.C. § 922(g)(1) (2006).                             The district court

sentenced          Harris    to   188    months     of       imprisonment,             and   Harris

appeals    his       convictions        and   sentence.             Finding       no    error,    we

affirm.

               Harris       argues    that    (1)    the      Government’s             failure    to

move for a downward departure based on substantial assistance

under U.S. Sentencing Guidelines Manual § 5K1.1 (2007) amounted

to prosecutorial misconduct; (2) the district court committed

clear error in failing to review the Government’s decision not

to file a substantial assistance motion; and (3) trial counsel

was ineffective for failing to move to compel the Government to

make    the    substantial         assistance       motion.           The     Government         has

asserted Harris’ appeal is foreclosed by the appellate waiver in

the plea agreement, in which Harris agreed to waive his right to

appeal    his        convictions        and   sentence,            except    for       claims    of

prosecutorial misconduct or ineffective assistance of counsel.

Because       we    find    Harris’      waiver     of       his    right        to    appeal    was

knowing and voluntary, see United States v. Blick, 408 F.3d 162,

168 (4th Cir. 2005), we find that Harris waived his right to

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appeal, except for his claims of prosecutorial misconduct and

ineffective assistance of counsel.

             Harris argues that the Government committed misconduct

because    its    refusal     to    move    for    a    downward       departure       was

arbitrary     and    because       the     Government      drafted        an     illusory

agreement in which it had no obligation to move for a departure

even if Harris complied with the bargain.                   We have reviewed the

record and find Harris’ claims to be without merit.                            See United

States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (stating

reversible       prosecutorial      misconduct          occurs     when        Government

engages in “improper” conduct that “prejudicially affect[s]” an

individual’s “substantial rights so as to deprive him of a fair

trial”).

             Furthermore,      Harris’         claim    that     his      counsel      was

ineffective is not cognizable on direct appeal because counsel’s

ineffectiveness does not conclusively appear on the face of the

record.     See United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir. 2006).      We therefore affirm the judgment.                 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.

                                                                                 AFFIRMED




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