                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 16-4092


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

GORDIE LEROY PENSON,

                    Defendant - Appellant.



Appeal from the United States District Court for the Western District of North Carolina,
at Asheville. Martin K. Reidinger, District Judge. (1:15-cr-00007-MR-DLH-1)


Submitted: March 21, 2017                                         Decided: April 5, 2017


Before DUNCAN, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles R. Brewer, Asheville, North Carolina, for Appellant. Amy E. Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Gordie Leroy Penson appeals his convictions for Hobbs Act robbery, in violation

of 18 U.S.C. § 1951(a) (2012); knowingly and unlawfully discharging a firearm in

furtherance of a crime of violence (Hobbs Act robbery), in violation of 18 U.S.C.

§ 924(c)(1)(A)(iii) (2012); and being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1) (2012). After consideration of Penson’s claims, we affirm.

       Penson first argues that the district court plainly erred when it failed to require the

Government to comply with the court’s discovery order and disclose exculpatory

evidence in accordance with Brady v. Maryland, 373 U.S. 83 (1963). Because Penson

did not raise this objection below, our review is for plain error. To establish plain error,

Penson must show that (1) an error exists, (2) the error is plain, and (3) the error affects

his substantial rights.   United States v. Olano, 507 U.S. 725, 732-34 (1993).           If a

defendant satisfies those conditions, then we may exercise our discretion to correct the

error if it “seriously affects the fairness, integrity or public reputation of judicial

proceedings.” Id. at 732 (alterations and internal quotation marks omitted).

       In order to prove a Brady violation, (1) “[t]he evidence at issue must be favorable

to the accused, either because it is exculpatory, or because it is impeaching”; (2) “that

evidence must have been suppressed by the [s]tate, either willfully or inadvertently”; and

(3) the evidence must be material. Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see

id. at 280. Here, Penson does not identify any favorable evidence that the Government

failed to disclose, nor does he show how such evidence might be material to his case. See

United States v. Caro, 597 F.3d 608, 619 (4th Cir. 2010) (“Because [defendant] can only

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speculate as to what the requested information might reveal, he cannot satisfy Brady’s

requirement of showing that the requested evidence would be favorable to [him].”).

Thus, we reject this claim.

       Penson further argues that comments the Government made during closing

argument prejudiced him. Our review is for plain error. For claims of prosecutorial

misconduct during closing argument, “an appellant must show that the remarks were

improper and that they prejudicially affected the defendant’s substantial rights so as to

deprive [him] of a fair trial.” United States v. Rand, 835 F.3d 451, 465 (4th Cir.)

(internal quotation marks omitted) (stating factors courts consider), cert. denied, 137 S.

Ct. 525 (2016).

       Penson does not show that the district court plainly erred when it allowed the

Government to comment during closing argument regarding possible ownership of a cell

phone found near the scene of the robbery. Assuming arguendo that the Government’s

comments relating to information retrieved from the cell phone were improper, Penson

does not establish prejudice. Absent the remarks about the cell phone, the remaining

evidence at trial, particularly when viewed in the light most favorable to the Government,

established Penson’s guilt. Thus, the district court did not plainly err.

       Penson also argues that the Government presented insufficient evidence to identify

him as the robber, so the district court erred when it submitted his case to the jury. “In

evaluating the sufficiency of the evidence to support a criminal conviction, we must

determine—viewing the evidence and all of the inferences reasonably to be drawn from it

in the light most favorable to the Government—whether a reasonable trier of fact could

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have found the defendant guilty beyond a reasonable doubt.” United States v. Hughes,

401 F.3d 540, 544-45 (4th Cir. 2005) (internal quotation marks omitted).               “[I]n

sufficiency challenges our focus is the complete picture that the evidence presents.”

United States v. Strayhorn, 743 F.3d 917, 921-22 (4th Cir. 2014) (internal quotation

marks omitted). Penson bears a heavy burden, as “[a]ppellate reversal on grounds of

insufficient evidence . . . [is] confined to cases where the prosecution’s failure is clear.”

United States v. Clarke, 842 F.3d 288, 297 (4th Cir. 2016) (citations and internal

quotation marks omitted).

       Contrary to Penson’s assertion on appeal, the Government established an effect on

interstate commerce through a stipulation of that element by the parties. Additionally,

the record refutes Penson’s contention that the evidence did not prove he committed the

robbery. The evidence presented at trial showed the following: within minutes of the

robbery, officers found Penson hiding in trees and bushes on the property of the

restaurant that was robbed; eyewitnesses saw Penson leave the restaurant and run toward

the trees and bushes; officers found a bag containing a .45-caliber pistol near Penson and

ammunition inside the restaurant’s office; Penson tested positive for gunshot residue on

his hands at the time of his arrest; officers found near Penson a large amount of cash and

clothing consistent with the eyewitnesses’ descriptions of the robber’s attire; and officers

found cell phones with connections to Gordie Penson near the scene of the crime. When

viewed in the light most favorable to the Government, even in the absence of DNA or

fingerprint evidence, the jury could reasonably conclude that Penson was the person who



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robbed the restaurant. Thus, the district court did not plainly err by submitting the case to

the jury.

       Finally, Penson argues that trial counsel provided ineffective assistance by failing

to raise objections in the district court, which resulted in this court reviewing his claims

for plain error. Unless an attorney’s ineffectiveness conclusively appears on the face of

the record, ineffective assistance claims are not generally addressed on direct appeal.

United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014). Instead, such claims

should be raised in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in order to

permit sufficient development of the record. United States v. Baptiste, 596 F.3d 214, 216

n.1 (4th Cir. 2010).    Because the record does not conclusively establish ineffective

assistance of counsel, see Strickland v. Washington, 466 U.S. 668, 688 (1984) (providing

standard), we decline to review this claim on direct appeal.

       Accordingly, we affirm the district court’s judgment. We 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




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