                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4251


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

QUENTIN EARL BATTLE,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:12-cr-00181-D-1)


Submitted:   January 31, 2014             Decided:   March 11, 2014


Before MOTZ, AGEE, and THACKER, Circuit Judges.


Dismissed in part; affirmed in part by unpublished per curiam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


Sue Genrich Berry, BOWEN AND BERRY, PLLC, Wilmington, North
Carolina, for Appellant.      Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

          Quentin    Earl     Battle       appeals   the   district    court’s

judgment imposing a sentence of 420 months in prison after he

pled guilty to conspiracy to distribute five or more kilograms

of cocaine, two hundred eighty grams or more of cocaine base,

and a quantity of heroin in violation of 21 U.S.C. § 846 (2012),

and money laundering in violation of 18 U.S.C. § 1956(a) (2012).

On appeal, Battle requests resentencing and contends that (1)

the Government violated Brady v. Maryland, 373 U.S. 83 (1963),

by suppressing exculpatory evidence material to punishment; (2)

his attorney was ineffective in not contesting his sentencing

enhancement for possessing a dangerous weapon; (3) his sentence

is substantively unreasonable; and (4) his appellate waiver is

unenforceable.    We dismiss in part and affirm in part.

          The    Government    has   moved     to    dismiss   the   appeal   as

barred by Battle’s waiver of the right to appeal in his plea

agreement.    Upon review of the plea agreement and transcript of

the Fed. R. Crim. P. 11 hearing, we previously concluded that

Battle knowingly and voluntarily waived the right to appeal, but

his first two issues fell outside the scope of the waiver.                    We

ordered the Government to file a brief responding to the first

two issues and deferred action on the motion to dismiss.

          Battle first contends that the Government violated his

due process rights under Brady v. Maryland, 373 U.S. 83 (1963),

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by suppressing exculpatory evidence material to punishment.                  In

Brady,   the    Supreme    Court   held    “that   the   suppression   by   the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.”          Id. at 87.      “A failure to disclose

violates due process only if the evidence in question (1) is

favorable to the defendant because it is either exculpatory or

impeaching; (2) was suppressed by the government; and (3) is

material   in    that     its   suppression   prejudiced    the    defendant.”

United States v. Sterling, 724 F.3d 482, 511 (4th Cir. 2013).

           The burden of proving a Brady violation rests with the

defendant.      United States v. King, 628 F.3d 693, 701-02 (4th

Cir. 2011).      In reviewing a district court’s denial of a Brady

claim, we review the district court’s legal conclusions de novo

and its factual findings for clear error.            Id. at 702.

           “Undisclosed evidence is material when its cumulative

effect is such that ‘there is a reasonable probability that, had

the evidence been disclosed to the defense, the result of the

proceeding would have been different.’”              Sterling, 724 F.3d at

511 (quoting Kyles v. Whitley, 514 U.S. 419, 433-34 (1995)).

Where it is impossible to say whether the evidence is relevant,

a defendant may be entitled to an in camera inspection by the

district court if he makes a plausible showing that it may be

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both material and favorable.              See Pennsylvania v. Ritchie, 480

U.S. 39, 57-58 & n.15 (1987); King, 628 F.3d at 703-04.

             At    sentencing,      Battle       objected    to      the     probation

officer’s determination that his base offense level was thirty-

eight     under    U.S.     Sentencing    Guidelines       Manual     § 2D1.1(c)(1)

(2012).          The    determination     was     based     partly     on     eighteen

cooperator statements credited by the Government and partly on

conversion of $443,515 in drug profits to drug weight.                          Battle

disputed some of the estimates given by cooperators and argued

that conversion of the drug profits risked double counting.                         He

contended that his base offense level should be thirty-six.

             The Government presented evidence from law enforcement

witnesses in support of the enhancement.                  One witness testified

that the drug profits seized from Battle would represent 220

kilograms     of       cocaine   based    on    the   officer’s      knowledge     and

experience in drug trafficking in the area.                   He also testified

as   to    why     he    believed   the    eighteen       cooperator        statements

included in the presentence report were reliable, and he noted

there were two or three other statements attributing drug weight

to Battle that were not included in the report or given to the

prosecution or defense because they were not deemed reliable.

             Battle argued that the two or three statements that

were deemed unreliable should have been given to the defense as

Brady material, because they might undermine the credibility of

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the eighteen statements on which the Government was relying.

The Government questioned how statements attributing additional

drug weight to Battle could have been exculpatory or favorable.

          The   district   court   denied   Battle’s   Brady   claim   and

overruled the objection to drug weight after finding that Battle

would still have a base offense level of thirty-eight based on

conversion of the cash to 220 kilograms of cocaine and without

the disputed estimates provided by cooperators; and the district

court ruled that it would impose the same sentence as a variant

sentence even if it erred in calculating the Guidelines.               We

conclude that the district court did not err in denying Battle’s

Brady claim, because he failed to show a reasonable probability

that the result of the sentencing proceeding would have been

different if the evidence had been disclosed.

          Battle next contends that his counsel was ineffective

in not objecting to the enhancement under USSG § 2D1.1(b)(1) for

possessing a dangerous weapon.      We will only consider this claim

on direct appeal if it conclusively appears on the record that

counsel did not provide effective representation.              See United

States v. Powell, 680 F.3d 350, 359 (4th Cir.), cert. denied,

133 S. ct. 376 (2012).      Based on our review of the record, we

cannot   conclude   that   it   conclusively   shows    that    counsel’s

performance was deficient or prejudicial.          See Strickland v.

Washington, 466 U.S. 668, 687 (1984).

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           Battle     next   contends       his   sentence      is   substantively

unreasonable.       Because he waived his right to appeal this issue,

we grant the Government’s motion to dismiss in part and dismiss

the appeal as to this claim.            Finally, Battle contends that his

appellate waiver is unenforceable because it was not knowing and

voluntary.     Since we have already decided that the waiver was

knowing and voluntary, we find this claim without merit.

           Accordingly, we grant in part and deny in part the

Government’s motion to dismiss, dismiss the appeal as to the

sentencing claim, and 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.



                                                               DISMISSED IN PART;
                                                                 AFFIRMED IN PART




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