                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 09-5163


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

CARLA GRIFFIN,

                 Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00173-FDW-4)


Submitted:   January 31, 2011              Decided:   February 11, 2011


Before WILKINSON, KING, and DUNCAN, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam
opinion.


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Unpublished opinions are not binding precedent in this circuit.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

             Carla Griffin pled guilty, pursuant to a written plea

agreement, to mortgage fraud conspiracy, 18 U.S.C. § 371 (2006),

and was sentenced to a 60-month term of imprisonment and ordered

to pay restitution in the amount of $2,787,499.91.                               She appeals,

claiming that the district court erred in determining the amount

of loss attributable to her for sentencing purposes and that the

Government engaged in prosecutorial misconduct.                            The Government

has moved to dismiss the appeal based on a waiver provision in

Griffin’s plea agreement.                We affirm in part and dismiss in

part.

             A    defendant     may     waive    the    right       to   appeal         if     that

waiver is knowing and intelligent.                    United States v. Blick, 408

F.3d 162, 169 (4th Cir. 2005).              Generally, if the district court

fully   questions        a   defendant      at    his        Fed.     R.        Crim.     P.     11

proceeding       regarding      the   waiver     of    his    right      to      appeal,        the

waiver is both valid and enforceable.                   United States v. Johnson,

410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,

936   F.2d   165,      167-68    (4th    Cir.    1991).         Whether          a   defendant

validly waives his right to appeal is a question of law that we

review de novo.        Blick, 408 F.3d at 168.

             After reviewing the record, we conclude that Griffin

knowingly        and   voluntarily       waived       her     right        to     appeal       her

conviction       and   sentence,      retaining        only     her      right       to      raise

                                            2
claims     based     on     prosecutorial          misconduct     or    ineffective

assistance of counsel.            We find that Griffin’s challenges to the

calculation of her sentence fall within the scope of the waiver

and,   therefore,     we    grant    in     part   the   Government’s    motion   to

dismiss.

            In     order    to    show    prosecutorial     misconduct,       Griffin

bears the burden of showing that the prosecutor’s conduct was

(1)    improper    and     (2)    prejudicially      affected     the   defendant’s

substantial rights so as to deny the defendant a fair trial.

United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005).                       Our

review of the record discloses that the prosecutor’s conduct was

neither     improper         nor      prejudicially         affected      Griffin’s

substantial rights.         Accordingly, we affirm.

            Thus,     we    deny    in    part     the   Government’s    motion    to

dismiss    and     affirm    Griffin’s       conviction     and   sentence.       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.


                                                                DISMISSED IN PART;
                                                                  AFFIRMED IN PART




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