                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 06-5188



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

          versus


ANTHONY CHARLES CARTER,

                                               Defendant - Appellant.


Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. N. Carlton Tilley, Jr.,
District Judge. (1:06-cr-00100-NCT)


Submitted:   August 6, 2007                 Decided:   August 17, 2007


Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Walter L. Jones, JONES, FREE & KNIGHT, PLLC, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, L. Patrick Auld, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

             Anthony Charles Carter appeals his convictions and 360-

month sentence for possession with intent to distribute 16.3 grams

of cocaine base and 33.7 grams of cocaine powder in violation of 21

U.S.C.A. §§ 841 (a)(1), (b)(1)(B), (b)(1)(C) (West 1999 & Supp.

2007), possession of a firearm in furtherance of a drug trafficking

offense in violation of 18 U.S.C. § 924 (c)(1)(A)(I) (2000), and

possession of a firearm by a convicted felon in violation of 18

U.S.C. §§ 922(g)(1), 924(e) (2000).           He argues that the Government

made improper use of his post-arrest silence and the district court

committed plain error when it failed sua sponte to declare a

mistrial based on Government witnesses’ testimony that referred to

his silence after he had been advised of his Miranda* rights and

invoked his right to silence.

             Errors raised for the first time on appeal are reviewed

for plain error.      Fed. R. Crim. P. 52(b); United States v. Olano,

507   U.S.    725,   732   (1993).    Plain    error   review   requires   the

defendant to establish that:         (1) there was error; (2) the error

was “plain”; and (3) the error affected the defendant’s substantial

rights.      Id.   Even if the defendant makes this required showing,

“Rule 52(b) leaves the decision to correct the forfeited error

within the sound discretion of the court of appeals, and the court

should not exercise that discretion unless the error seriously


      *
       Miranda v. Arizona, 384 U.S. 436 (1967)

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affect[s] the fairness, integrity, or public reputation of judicial

proceedings.” Id. (internal quotation marks and citation omitted).

          While   the   Government   cannot   unfairly   comment   on   a

defendant’s exercise of his post-arrest, post-Miranda silence to

prove guilt, it may elicit testimony about post-arrest silence to

contradict a defendant who testifies to an exculpatory version of

events and claims to have told the police the same version at the

time of arrest.   Doyle v. Ohio, 426 U.S. 610, 619 n. 11 (1976).

Carter testified that he told police officers the guns found in the

car he was driving were not his.        When the Government asked its

rebuttal witness whether Carter explained that the firearms did not

belong to him at the sheriff’s office, the officer said: “[a]fter

his rights were read, nothing was said.       He didn’t say a word.”

Carter did not object and the Government did not ask any further

questions.   The brief reference to Carter’s post-Miranda silence

was elicited, not to establish guilt, but to impeach Carter’s

assertion that he gave his exculpatory version to police officers.

          A prosecutor may also question a defendant about his

post-arrest silence for the purpose of rebutting the impression

that he cooperated with law enforcement authorities. United States

v. Fairchild, 505 F.2d 1378, 1383 (5th Cir. 1975) (cited with

approval in Doyle); United States v. O’Keefe, 461 F.3d 1338, 1348

(11th Cir. 2006) (“When a defendant attempts to convince a jury of

that he was of a cooperative spirit, Doyle does not tie the hands


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of prosecutors who attempt to rebut this presentation by pointing

to a lack of cooperation.”)(internal quotation marks and citation

omitted).     Here, the defense sought to create the impression of

cooperation by asking the police officers on cross-examination

whether Carter cooperated at the time of arrest, did “everything”

the officers asked, and voluntarily answered their questions.            The

Government was entitled to present contradictory evidence.

            Even if we were to find error occurred, Carter cannot

establish the error was prejudicial such that it affected his

substantial rights.     United States v. Williams, 81 F.3d 1321, 1326

(4th Cir. 1996) (a forfeited plain error affects a defendant’s

substantial rights if it affected the outcome of the proceedings

below).     It is also abundantly clear that the testimony at issue

did not undermine the fairness or integrity of the proceedings.

See Olano, 507 U.S. at 736.

            Accordingly, we affirm Carter’s convictions and sentence.

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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