UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4104
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTONIO DANIEL MCGHEE, a/k/a AD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Mark S. Davis, District
Judge. (4:12-cr-00010-MSD-LRL-1)
Submitted: September 30, 2013 Decided: October 15, 2013
Before NIEMEYER, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Keith L.
Kimball, Assistant Federal Public Defender, Caroline S. Platt,
Appellate Attorney, Norfolk, Virginia, for Appellant. Howard
Jacob Zlotnick, Assistant United States Attorney, Newport News,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
A jury convicted Antonio Daniel McGhee of conspiracy
to interfere with commerce by robbery, in violation of 18 U.S.C.
§ 1951 (2006); interference with commerce by robbery, in
violation of 18 U.S.C. § 1951; carjacking, in violation of 18
U.S.C. § 2119 (2006); and brandishing a firearm during a crime
of violence, in violation of 18 U.S.C. § 924(c) (2006). The
district court sentenced McGhee to a within-Guidelines sentence
of 244 months’ imprisonment. On appeal, counsel for McGhee
filed a brief pursuant to Anders v. California, 386 U.S. 738
(1967), asserting that there are no meritorious issues for
appeal, but questioning whether the district court erred in
admitting testimony in violation of Fed. R. Evid. 608(a) and
whether the prosecutor made improper remarks in closing
arguments. McGhee has filed a supplemental pro se brief
claiming ineffective assistance of counsel and asserting that
his convictions should be overturned based on Alleyne v. United
States, 133 S. Ct. 2151 (2013), and the Double Jeopardy Clause.
We affirm.
We review a district court’s evidentiary rulings for
abuse of discretion, which occurs only when the district court’s
decision is guided by erroneous legal principles or rests upon a
clearly erroneous factual finding. United States v. Johnson,
617 F.3d 286, 292 (4th Cir. 2010). Further, evidentiary rulings
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are subject to harmless error review; an error is harmless when
we can say “with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
Id. (internal quotation marks omitted). We conclude, based on
the record, that any opinion testimony presented in violation of
Rule 608(a) was harmless.
Although we have held that it is plain error when a
prosecutor states that a defendant has lied under oath, see
United States v. Woods, 710 F.3d 195, 203 (4th Cir. 2013), we
will reverse a conviction based on improper prosecutorial
remarks only if “the remarks were, in fact, improper, and . . .
the improper remarks so prejudiced the defendant’s substantial
rights that the defendant was denied a fair trial.” United
States v. Chong Lam, 677 F.3d 190, 209 (4th Cir. 2012) (internal
quotation marks omitted). In assessing prejudice, we consider
(1) the degree to which the prosecutor’s remarks have
a tendency to mislead the jury and to prejudice the
accused; (2) whether the remarks were isolated or
extensive; (3) absent the remarks, the strength of
competent proof introduced to establish the guilt of
the accused; (4) whether the comments were
deliberately placed before the jury to divert
attention to extraneous matters; (5) whether the
prosecutor’s remarks were invited by improper conduct
of defense counsel; and (6) whether curative
instructions were given to the jury.
United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010).
These factors are to be viewed in the context of the trial as a
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whole, and no single factor is dispositive. United States v.
Lighty, 616 F.3d 321, 361 (4th Cir. 2010). Our assessment of
the record in light of the above factors leads us to conclude
that McGhee was not so prejudiced by the prosecutor’s
problematic remarks that he was denied a fair trial.
Because the jury specifically found that McGhee
brandished a firearm, McGhee’s reliance on the Supreme Court’s
decision in Alleyne v. United States, 133 S. Ct. 2151 (2013),
lacks merit. Likewise, we find no merit in McGhee’s claim that
his convictions violate the Double Jeopardy Clause, as it is
evident that each charge requires proof of a fact that the other
does not, see Blockburger v. United States, 284 U.S. 299, 304
(1932), and a substantive crime and a conspiracy to commit that
crime are separate offenses for purposes of the Double Jeopardy
Clause, see United States v. Felix, 503 U.S. 378, 390-91 (1992).
Finally, McGhee’s pro se brief alleges that defense
counsel rendered ineffective assistance when he failed to advise
McGhee to plead guilty. However, the record does not
conclusively establish any deficient performance of counsel.
See United States v. Benton, 523 F.3d 424, 435 (4th Cir. 2008)
(providing standard); United States v. Baldovinos, 434 F.3d 233,
239 (4th Cir. 2006). We therefore conclude that the ineffective
assistance claims are not cognizable on direct appeal. Rather,
to permit adequate development of the record, McGhee must pursue
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such claims, if at all, in an appropriate proceeding for post-
conviction relief. United States v. Baptiste, 596 F.3d 214, 216
n.1 (4th Cir. 2010).
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. This court
requires that counsel inform McGhee, in writing, of the right to
petition the Supreme Court of the United States for further
review. If McGhee requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on McGhee.
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.
AFFIRMED
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