                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 08-4484


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

TARVIS LEVITICUS DUNHAM,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:06-cr-00456-FDW-1)


Submitted:    April 10, 2009                 Decided:   April 22, 2009


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


Affirmed by unpublished per curiam opinion.


David G. Belser, BELSER & PARKE, Asheville, North Carolina, for
Appellant. Gretchen C. F. Shappert, United States Attorney,
Charlotte, North Carolina; Amy E. Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Following a guilty plea, Tarvis Leviticus Dunham was

convicted of using a firearm in relation to a crime of violence,

assault with a deadly weapon during a bank robbery, and larceny

of a motor vehicle through force or violence, in violation of 18

U.S.C. §§ 924(c)(1), 2113(d), and 2119 (2006).                        The district

court sentenced Dunham to a total of 300 months’ imprisonment.

Dunham appeals his sentence, contending that the prosecutor in

his case committed misconduct by introducing a statement by the

spouse of the carjacking victim as a victim statement during the

sentencing hearing.        Dunham argues the spouse was not a “victim”

under 18 U.S.C. § 3771(e) (2006), the prosecutor violated his

due process rights by failing to provide advance notice of his

intent to introduce the statement, and the prosecutor’s argument

at sentencing improperly referenced the statement.                      Finding no

error, we affirm.

            A claim of prosecutorial misconduct is reviewed “to

determine     whether   the    conduct      so     infected     the    trial   with

unfairness as to make the resulting conviction a denial of due

process.”     United States v. Scheetz, 293 F.3d 175, 185 (4th Cir.

2002)   (internal    quotation    marks      and     citation    omitted).      To

prevail     under   this    standard,       Dunham    must      show    that   “the

prosecutor’s remarks or conduct were improper and, . . . that



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such remarks or conduct prejudicially affected his substantial

rights so as to deprive him of a fair trial.”                      Id.

          The Crime Victims’ Rights Act (CVRA) defines a “crime

victim” as “a person directly and proximately harmed as a result

of the commission of a Federal offense.”                       18 U.S.C. § 3771(e)

(2006).      The     current    law       does   not    definitively        answer    the

question of whether the spouse was a victim of Dunham’s crimes,

as defined by the CVRA.          See In re Antrobus, 519 F.3d 1123, 1125

(10th Cir. 2008) (noting that “[t]his area of the law . . . is

not well-developed and is evolving”).                     The act does not limit

the   information      a   district         court      may   hear    at     sentencing.

Therefore,     the     prosecutor         did    not     act    in       derogation    of

established     authority       by    offering      and      then    referencing      the

spouse’s victim impact statement. *

             Dunham     cites        no     authority        for     his     additional

contention that the prosecutor violated his right to due process

by failing to give him advance notice of his intent to introduce

the spouse’s statement.              Again, the prosecutor’s conduct was

neither improper nor constituted prosecutorial misconduct.




      *
       In the alternative, even if it is assumed the spouse was
not a victim of Dunham’s crime, as defined by the CVRA, we would
nevertheless conclude that the impact of his statement did not
so infect the sentencing proceeding with prejudicial error as to
warrant relief.



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            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions   are   adequately   presented    in   the    materials

before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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