UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5015
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTOPHER EUGENE HARRIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00115-LHT-1)
Submitted: April 24, 2009 Decided: May 13, 2009
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Gretchen C. F. Shappert, United States Attorney, Adam Morris,
Assistant United States Attorney, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christopher Eugene Harris pleaded guilty pursuant to a
plea agreement to conspiracy to possess with intent to
distribute cocaine base (“crack”), in violation of 21 U.S.C.
§ 846 (2006), and possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g)(1) (2006). The district court
sentenced Harris to 188 months of imprisonment, and Harris
appeals his convictions and sentence. Finding no error, we
affirm.
Harris argues that (1) the Government’s failure to
move for a downward departure based on substantial assistance
under U.S. Sentencing Guidelines Manual § 5K1.1 (2007) amounted
to prosecutorial misconduct; (2) the district court committed
clear error in failing to review the Government’s decision not
to file a substantial assistance motion; and (3) trial counsel
was ineffective for failing to move to compel the Government to
make the substantial assistance motion. The Government has
asserted Harris’ appeal is foreclosed by the appellate waiver in
the plea agreement, in which Harris agreed to waive his right to
appeal his convictions and sentence, except for claims of
prosecutorial misconduct or ineffective assistance of counsel.
Because we find Harris’ waiver of his right to appeal was
knowing and voluntary, see United States v. Blick, 408 F.3d 162,
168 (4th Cir. 2005), we find that Harris waived his right to
2
appeal, except for his claims of prosecutorial misconduct and
ineffective assistance of counsel.
Harris argues that the Government committed misconduct
because its refusal to move for a downward departure was
arbitrary and because the Government drafted an illusory
agreement in which it had no obligation to move for a departure
even if Harris complied with the bargain. We have reviewed the
record and find Harris’ claims to be without merit. See United
States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (stating
reversible prosecutorial misconduct occurs when Government
engages in “improper” conduct that “prejudicially affect[s]” an
individual’s “substantial rights so as to deprive him of a fair
trial”).
Furthermore, Harris’ claim that his counsel was
ineffective is not cognizable on direct appeal because counsel’s
ineffectiveness does not conclusively appear on the face of the
record. See United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006). We therefore affirm the judgment. 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
3