                                          Filed:   November 29, 2012

                 UNITED STATES COURT OF APPEALS
                     FOR THE FOURTH CIRCUIT


                           No. 12-4322
                      (3:10-cr-01031-JFA-1)


UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.

DAMON D. MCDUFFIE,

               Defendant - Appellant.



                            O R D E R


          The Court amends its opinion filed November 29, 2012,

as follows:

          On page 2, first line of text -- “armed robbery” is

corrected to read “extortion.”

                                       For the Court – By Direction


                                          /s/ Patricia S. Connor
                                                    Clerk
                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4322


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

DAMON D. MCDUFFIE,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Columbia. Joseph F. Anderson, Jr., District
Judge. (3:10-cr-01031-JFA-1)


Submitted:   November 19, 2012            Decided:   November 29, 2012


Before WILKINSON and    THACKER,   Circuit    Judges,   and   HAMILTON,
Senior Circuit Judge.


Affirmed in part; dismissed in part by unpublished per curiam
opinion.


Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Mark C. Moore, Assistant United
States Attorney, Columbia, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Damon      D.   McDuffie   pled       guilty         to     extortion    in

violation of 18 U.S.C. § 1951 (2006).                  McDuffie’s written plea

agreement     included      a   Federal    Rule        of     Criminal       Procedure

11(c)(1)(C) stipulated sentence of fifteen months’ imprisonment.

The district court imposed the stipulated sentence.                           McDuffie

then filed this timely appeal.

            McDuffie’s attorney has filed a brief in accordance

with Anders v. California, 386 U.S. 738 (1967), certifying that

there are no meritorious issues for appeal but asking this court

to   consider    whether    the   Government      engaged         in    prosecutorial

misconduct       by    allowing    McDuffie       to        be    debriefed      while

represented by an attorney who was himself the target of an

investigation.        McDuffie has filed a pro se brief also asserting

prosecutorial misconduct on this ground, but disagreeing with

counsel’s assessment that such issue lacks merit.                       McDuffie also

asserts ineffective assistance of counsel.                       The government has

declined    to   file   a   brief. *   Because      we      find       no   meritorious

grounds for appeal, we affirm.


      *
       The government has not sought enforcement of the waiver of
appellate rights in the plea agreement.     See United States v.
Poindexter, 492 F.3d 263, 271 (4th Cir. 2007) (recognizing that
the government may file a responsive brief raising the appellate
waiver issue or do nothing and allow this Court to perform the
Anders review).



                                       2
               This court “review[s] for plain error a prosecutorial

misconduct claim that was not raised or presented to the trial

court.”         United      States     v.   Alerre,       430    F.3d    681,    689   (4th

Cir. 2005).          To succeed on a claim of prosecutorial misconduct,

a defendant must show that the prosecutor engaged in improper

conduct        and   that      such    conduct     “prejudiced          the    defendant’s

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

Id.     We have thoroughly reviewed the record and find no improper

conduct on the part of the prosecutor.                          Additionally, we have

reviewed McDuffie’s claim of ineffective assistance of counsel

and     find     that    the     record     does    not     conclusively         establish

ineffective assistance.               Accordingly, the ineffective assistance

claim is not cognizable on direct appeal, and must be brought in

a motion under 28 U.S.C.A. § 2255 (West Supp. 2012).                            See United

States v. Baptiste, 596 F.3d 214, 216-17 n.1 (4th Cir. 2010).

               Next,     we    conclude     we     lack    jurisdiction         to   review

McDuffie’s sentence.              The federal statute governing appellate

review of a sentence, 18 U.S.C. § 3742(c) (2006), limits the

circumstances under which a defendant may appeal a sentence to

which    he     stipulated      in    a   Rule   11(c)(1)(C)       plea       agreement   to

claims that the sentence was imposed in violation of law or as a

result of an incorrect application of the sentencing guidelines.

United States v. Sanchez, 146 F.3d 796, 797 & n.1 (10th Cir.

1998); United States v. Littlefield, 105 F.3d 527, 527-28 (9th

                                             3
Cir.    1997).         Here,      McDuffie’s       sentence       did    not    exceed    the

applicable statutory maximum, and was the precise sentence he

had bargained for with the Government.                            Thus, review of his

sentence is precluded by § 3742(c).

               Finally, we have reviewed the remaining issues raised

in McDuffie’s pro se brief and find them to be without merit.

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

case and found no meritorious issues for appeal.                               We therefore

affirm    McDuffie’s        conviction         and   dismiss       his    appeal     to   the

extent he challenges his sentence.                         This court requires that

counsel inform McDuffie in writing of the right to petition the

Supreme       Court    of   the    United     States    for    further         review.     If

McDuffie 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

McDuffie.         Finally,        we   deny     McDuffie’s        motion       for   release

pending appeal and 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 IN PART;
                                                                        DISMISSED IN PART




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