                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-4450


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PAUL CLAUDIO,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern.   Louise W. Flanagan,
Chief District Judge. (4:09-cr-00057-FL-1)


Submitted:   August 24, 2011             Decided:   September 26, 2011


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Deborrah Lynn Newton, NEWTON LAW, Raleigh, North Carolina, for
Appellant.    George E. B. Holding, 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Unpublished opinions are not binding precedent in this circuit.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:

               Paul Claudio (hereinafter “the Appellant”) appeals his

conviction and 105-month sentence for one count of possession of

a    firearm    by    a     convicted     felon    in   violation   of    18    U.S.C.

§§ 922(g)(1), 924 (2006).                 He raises five claims of error on

appeal:    (1) that the district court erred in denying his motion

to   reconsider       the    grant   of    the    Government’s   motion    to   quash

production of Maria Claudio’s Alien File (“A-File”); (2) that

the district court erred in denying the Appellant’s motion to

exclude evidence that he raped, assaulted, and intimidated his

wife with a handgun; (3) that the court erred in imposing a two-

level enhancement to his offense level; (4) that the court erred

in upwardly departing from his advisory Guidelines range; and

(5) that he received constitutionally ineffective assistance of

counsel.       We affirm.



                 I.    Production of Maria Claudio’s A-File

               In ex parte proceedings, the Appellant sought his ex-

wife’s A-File, maintained by the Department of Homeland Security

(“DHS”).       While the district court ordered production, the court

indicated that production might be delayed and that the court

would need to review the materials in camera.                    Nevertheless, the

Appellant did not request a continuance.



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            By the time Maria Claudio was to testify, DHS had not

yet produced the A-File.               The court concluded, however, that

cross-examining       Maria     Claudio       based     on     the     materials       the

Appellant believed to be in the A-File would not be appropriate

because the evidence was cumulative and would confuse the jury.

            To the extent that this claim on appeal is a challenge

to the court’s inability to cause the production of the A-File

before trial, the claim is waived.                    See David v. City of Los

Angeles, 307 F.3d 1143, 1147 (9th Cir. 2002) (waiver of right to

cross-examine when plaintiff elected to continue the hearing and

not ask for a continuance when police officer did not appear).

            To the extent that the Appellant claims error in the

court’s     evidentiary       ruling    regarding        the       scope    of    cross-

examination, we do not agree.                 We review the district court’s

limitations on the defendant’s cross-examination of government

witnesses for abuse of discretion.               United States v. Smith, 451

F.3d 209, 220 (4th Cir. 2006).                Here, the information that the

Appellant    sought    to   use   on    cross-examination             was   related     to

Maria     Claudio’s    immigration       status       and     her     prior      Violence

Against    Women   Act    (“VAWA”)      petitions.           The     gravamen     of   the

Appellant’s claim was that Maria Claudio was biased, planted

evidence, and falsely claimed to have been abused in order to

secure citizenship.         The Appellant, however, was able to cross-

examine Maria Claudio on all of these points, and we therefore

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conclude that the court did not abuse its discretion in limiting

the scope of the Appellant’s cross to prevent cumulative and

confusing evidence from coming before the jury.



           II.     Denial of Motion to Exclude Certain Evidence

              Next, the Appellant contends that the district court

should have excluded evidence that the Appellant assaulted and

raped      Maria    Claudio   the    day    before     she    called   police   and

firearms were discovered in their home, and evidence that the

Appellant frequently intimidated Maria Claudio by pointing a 9-

millimeter handgun at her and cocking it in the days before

police     discovered    guns   in    the      home.     We   review   a   district

court’s evidentiary rulings for abuse of discretion.                        United

States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009).

              Federal Rule of Evidence 403 provides that “relevant

evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice.”                   The damage that

probative evidence can inflict on a defendant’s case is no basis

for excluding the evidence, however; only when that evidence

results in unfair prejudice, such as an appeal to the jury’s

emotion,      and     that    prejudice        “substantially     outweighs     the

probative value of the evidence,” must it be excluded.                       United

States v. Basham, 561 F.3d 302, 327 (4th Cir.), cert denied, 130

S.   Ct.    3353    (2010).      Where      the   jury   is    given   a   limiting

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instruction,      any   fear       that    the       jury    will   improperly       use    the

evidence subsides.

            Here, we conclude that this claim lacks merit.                                  The

challenged evidence was highly relevant to the offense charged,

namely,     possession        of    a     firearm.           Moreover,      the    evidence

provided    context     to    the       jury    regarding       the   reason      why   Maria

Claudio called police, and helped to rebut the defense’s theory

that Maria Claudio planted incriminating evidence.                                Moreover,

the district court gave the jury a curative instruction.



                        III.       Obstruction Enhancement

            The    Appellant,           whose       base    offense   level    was      twenty

pursuant to U.S. Sentencing Guidelines Manual § 2K2.1(a)(4)(A)

(2009),    received      a    four-level            enhancement       pursuant     to      USSG

§ 2K2.1(b)(1)(B)        for    possessing           between    eight    and    twenty-four

firearms,    and    a   two-level         obstruction         of    justice    enhancement

pursuant to USSG § 3C1.1 for allegedly perjuring himself during

state court proceedings related to his unlawful possession of a

firearm.    Appellant objects to the obstruction enhancement.

            According to USSG § 3C1.1, a defendant’s base offense

level is to be increased two levels for obstruction of justice

if “the defendant willfully obstructed or impeded, or attempted

to   obstruct      or   impede,         the     administration         of   justice        with

respect to the investigation, prosecution, or sentencing of the

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instant offense of conviction, and . . . the obstructive conduct

related to (i) the defendant’s offense of conviction; or (ii) a

closely    related    offense[.]”         USSG    § 3C1.1.       The    application

notes for § 3C1.1 specifically include the commission of perjury

by a defendant as grounds for the enhancement.                         USSG § 3C1.1

cmt. n.4(b).

            Here, the district court had ample evidence before it

that the Appellant perjured himself in a related state court

proceeding.       The Appellant testified in that proceeding that he

did not know there were guns in his home and that the guns all

belonged to his brother.            These statements flatly contradict

testimony adduced at trial on the Appellant’s federal charge

that the district court credited.                 The perjury in state court

was related to this case because it took place while the federal

investigation was ongoing and was related to the same offense

conduct.          Thus,   we     conclude        that     the   enhancement     was

appropriate.



                           IV.    Upward Departure

            The    Appellant      next    claims        error   in   the   district

court’s    conclusion      that     the       Appellant’s       criminal    history

category of III significantly underrepresented the seriousness

of his criminal history and its decision to upwardly depart to a

Guidelines range derived from a criminal history category of IV.

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When    the        district       court       imposes         a     departure          sentence,        we

consider       “whether         the    sentencing            court       acted      reasonably         both

with respect to its decision to impose such a sentence and with

respect       to    the    extent      of     the   divergence             from      the     sentencing

range.”        United States v. Hernandez-Villanueva, 473 F.3d 118,

123 (4th Cir. 2007).

               Under       USSG       § 4A1.3(a)(1),               the     district         court       may

upwardly       depart        from       the     Guidelines               range       if     the     court

determines          that     “the      defendant’s            criminal             history       category

substantially              under-represents                  the        seriousness           of        the

defendant’s          criminal         history           or    the        likelihood          that      the

defendant will commit other crimes[.]”

               The district court did not err by departing upwardly.

The    court       noted    that      state     rape         and    kidnapping            charges      were

still pending against the Appellant at the time of sentencing,

and    thus    were       not     properly      accounted            for    in      the    presentence

investigation report.                  Moreover, the court indicated that the

Appellant          has     been     prone      to       violence,          that       he     frequently

intimidated his wife by cocking a handgun behind her head, and

noted    that       testimony         indicated         that       he    had       shot    one    of    his

children with pellets.                   The court also noted the Appellant’s

prior    convictions            for    extortion,            resisting         a    public       officer,

assault on a female, and discharging a weapon into an occupied

property.          Under these circumstances, it was well within the

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court’s discretion to conclude that a criminal history category

of    III    significantly            underrepresented       the    seriousness         of   the

Appellant’s criminal history.



                     V.    Ineffective Assistance of Counsel

               The    Appellant           finally       claims      that     he     received

ineffective assistance of counsel at trial because his attorney

failed to investigate or present evidence that he suffers from

mental health problems and a brain deformity.

               Claims       of     ineffective          assistance    of      counsel        are

generally      not    cognizable          on     direct    appeal    unless       the   record

conclusively         establishes          counsel’s        “objectively       unreasonable

performance” and resulting prejudice.                       United States v. Benton,

523    F.3d    424,       435    (4th    Cir.     2008).      To    allow    for    adequate

development of the record, ineffective assistance claims should

be pursued in a motion filed pursuant to 28 U.S.C.A. § 2255

(West Supp. 2011).               United States v. Baptiste, 596 F.3d 214, 216

n.1 (4th Cir. 2010).                  Because the record before the court does

not conclusively establish ineffective assistance of counsel, we

decline to entertain this claim on direct appeal.

               We    therefore          affirm    the     judgment    of    the     district

court.        We dispense with oral argument because the facts and

legal       contentions         are    adequately       presented    in     the    materials



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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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