                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4104


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

ANTONIO DANIEL MCGHEE, a/k/a AD,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:12-cr-00010-MSD-LRL-1)


Submitted:   September 30, 2013           Decided:   October 15, 2013


Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Michael S. Nachmanoff, Federal Public Defender, Keith L.
Kimball, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant.    Howard
Jacob Zlotnick, Assistant United States Attorney, Newport News,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             A jury convicted Antonio Daniel McGhee of conspiracy

to interfere with commerce by robbery, in violation of 18 U.S.C.

§    1951   (2006);     interference       with          commerce    by    robbery,       in

violation of 18 U.S.C. § 1951; carjacking, in violation of 18

U.S.C. § 2119 (2006); and brandishing a firearm during a crime

of violence, in violation of 18 U.S.C. § 924(c) (2006).                                   The

district court sentenced McGhee to a within-Guidelines sentence

of   244    months’   imprisonment.            On    appeal,    counsel         for   McGhee

filed a brief pursuant to Anders v. California, 386 U.S. 738

(1967),     asserting    that     there    are       no    meritorious          issues    for

appeal,     but    questioning    whether          the    district   court        erred    in

admitting testimony in violation of Fed. R. Evid. 608(a) and

whether      the    prosecutor     made        improper        remarks      in        closing

arguments.         McGhee   has    filed       a    supplemental          pro    se    brief

claiming ineffective assistance of counsel and asserting that

his convictions should be overturned based on Alleyne v. United

States, 133 S. Ct. 2151 (2013), and the Double Jeopardy Clause.

We affirm.

             We review a district court’s evidentiary rulings for

abuse of discretion, which occurs only when the district court’s

decision is guided by erroneous legal principles or rests upon a

clearly erroneous factual finding.                       United States v. Johnson,

617 F.3d 286, 292 (4th Cir. 2010).                  Further, evidentiary rulings

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are subject to harmless error review; an error is harmless when

we   can   say    “with    fair       assurance,   after    pondering    all     that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.”

Id. (internal quotation marks omitted).                   We conclude, based on

the record, that any opinion testimony presented in violation of

Rule 608(a) was harmless.

            Although we have held that it is plain error when a

prosecutor    states      that    a    defendant   has    lied   under   oath,    see

United States v. Woods, 710 F.3d 195, 203 (4th Cir. 2013), we

will    reverse    a   conviction         based    on    improper   prosecutorial

remarks only if “the remarks were, in fact, improper, and . . .

the improper remarks so prejudiced the defendant’s substantial

rights that the defendant was denied a fair trial.”                         United

States v. Chong Lam, 677 F.3d 190, 209 (4th Cir. 2012) (internal

quotation marks omitted).             In assessing prejudice, we consider

       (1) the degree to which the prosecutor’s remarks have
       a tendency to mislead the jury and to prejudice the
       accused; (2) whether the remarks were isolated or
       extensive; (3) absent the remarks, the strength of
       competent proof introduced to establish the guilt of
       the   accused;    (4)   whether    the    comments    were
       deliberately   placed   before   the    jury   to   divert
       attention to extraneous matters; (5) whether the
       prosecutor’s remarks were invited by improper conduct
       of   defense   counsel;   and   (6)    whether    curative
       instructions were given to the jury.

United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010).

These factors are to be viewed in the context of the trial as a

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whole, and no single factor is dispositive.                      United States v.

Lighty, 616 F.3d 321, 361 (4th Cir. 2010).                     Our assessment of

the record in light of the above factors leads us to conclude

that     McGhee     was    not     so     prejudiced     by     the   prosecutor’s

problematic remarks that he was denied a fair trial.

            Because       the     jury    specifically        found   that     McGhee

brandished a firearm, McGhee’s reliance on the Supreme Court’s

decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),

lacks merit.       Likewise, we find no merit in McGhee’s claim that

his convictions violate the Double Jeopardy Clause, as it is

evident that each charge requires proof of a fact that the other

does not, see Blockburger v. United States, 284 U.S. 299, 304

(1932), and a substantive crime and a conspiracy to commit that

crime are separate offenses for purposes of the Double Jeopardy

Clause, see United States v. Felix, 503 U.S. 378, 390-91 (1992).

            Finally, McGhee’s pro se brief alleges that defense

counsel rendered ineffective assistance when he failed to advise

McGhee    to      plead   guilty.          However,    the      record     does   not

conclusively       establish      any    deficient    performance     of     counsel.

See United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)

(providing standard); United States v. Baldovinos, 434 F.3d 233,

239 (4th Cir. 2006).            We therefore conclude that the ineffective

assistance claims are not cognizable on direct appeal.                       Rather,

to permit adequate development of the record, McGhee must pursue

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such claims, if at all, in an appropriate proceeding for post-

conviction relief.        United States v. Baptiste, 596 F.3d 214, 216

n.1 (4th Cir. 2010).

            In accordance with Anders, we have reviewed the record

in this case and have found no meritorious issues for appeal.

We therefore affirm the district court’s judgment.                              This court

requires that counsel inform McGhee, in writing, of the right to

petition    the    Supreme      Court   of       the    United      States     for   further

review.     If     McGhee      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 McGhee.

            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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