                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4459


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

RUBEN L. AGUILAR, a/k/a Kilo,

                    Defendant - Appellant.



Appeal from the United States District Court for the Northern District of West Virginia,
at Clarksburg. Irene M. Keeley, Senior District Judge. (1:16-cr-00086-IMK-MJA-1)


Submitted: March 20, 2018                                         Decided: March 28, 2018


Before TRAXLER, KING, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Charles T. Berry, Fairmont, West Virginia, for Appellant. Traci Michelle Cook, OFFICE
OF THE UNITED STATES ATTORNEY, Clarksburg, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Ruben L. Aguilar pled guilty, pursuant to a written plea agreement, to conspiracy

to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846 (2012),

and was sentenced to 30 months’ imprisonment. On appeal, counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no

meritorious issues for appeal, but questioning whether the prosecutor committed

misconduct and whether Aguilar received ineffective assistance of counsel. Although

advised of his right to file a supplemental pro se brief, Aguilar has not done so. The

Government declined to file a response brief. We affirm.

       To prevail on a prosecutorial misconduct claim, a defendant must demonstrate that

the prosecutor’s conduct was improper and that the misconduct prejudicially affected the

defendant’s substantial rights. United States v. Caro, 597 F.3d 608, 624-25 (4th Cir.

2010). The relevant inquiry asks “whether the misconduct so infected the [proceeding]

with unfairness as to make the resulting conviction a denial of due process.” Id. at 624

(alteration and internal quotation marks omitted).      Because Aguilar did not raise a

prosecutorial misconduct claim in the district court, this Court reviews the issue for plain

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

transcript reveals no error, plain or otherwise, in the prosecutor’s conduct. It was within

the prosecutor’s discretion to offer Aguilar a plea agreement limited to the drug weight

from the federal investigation, and it was within Aguilar’s discretion to accept or reject

that plea offer. Thus, the prosecutor’s conduct as described by Aguilar was not improper.



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       Aguilar next claims that he received ineffective assistance of counsel. We do not

consider ineffective assistance claims on direct appeal “[u]nless an attorney’s

ineffectiveness conclusively appears on the face of the record.” United States v. Faulls,

821 F.3d 502, 507-08 (4th Cir. 2016). Indeed, a defense attorney should be given an

opportunity to address the reasons for his or her action or inaction, and the record should

be more fully developed, before addressing this issue. See United States v. DeFusco, 949

F.2d 114, 120-21 (4th Cir. 1991). Our review of the record uncovered no conclusive

evidence of ineffective assistance. Aguilar’s claim “should be raised, if at all, in a 28

U.S.C. § 2255 motion.” Faulls, 821 F.3d at 508.

       In accordance with Anders, we also have reviewed the entire record in this case

and have found no meritorious issues for appeal. We therefore affirm the criminal

judgment. This court requires that counsel inform Aguilar, in writing, of the right to

petition the Supreme Court of the United States for further review. If Aguilar 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 Aguilar.

       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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