UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5163
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CARLA GRIFFIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:07-cr-00173-FDW-4)
Submitted: January 31, 2011 Decided: February 11, 2011
Before WILKINSON, KING, and DUNCAN, Circuit Judges.
Dismissed in part; affirmed in part by unpublished per curiam
opinion.
Sandra J. Barrett, Asheville, North Carolina, for Appellant.
Amy Elizabeth Ray, Assistant United States Attorney, Asheville,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Carla Griffin pled guilty, pursuant to a written plea
agreement, to mortgage fraud conspiracy, 18 U.S.C. § 371 (2006),
and was sentenced to a 60-month term of imprisonment and ordered
to pay restitution in the amount of $2,787,499.91. She appeals,
claiming that the district court erred in determining the amount
of loss attributable to her for sentencing purposes and that the
Government engaged in prosecutorial misconduct. The Government
has moved to dismiss the appeal based on a waiver provision in
Griffin’s plea agreement. We affirm in part and dismiss in
part.
A defendant may waive the right to appeal if that
waiver is knowing and intelligent. United States v. Blick, 408
F.3d 162, 169 (4th Cir. 2005). Generally, if the district court
fully questions a defendant at his Fed. R. Crim. P. 11
proceeding regarding the waiver of his right to appeal, the
waiver is both valid and enforceable. United States v. Johnson,
410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells,
936 F.2d 165, 167-68 (4th Cir. 1991). Whether a defendant
validly waives his right to appeal is a question of law that we
review de novo. Blick, 408 F.3d at 168.
After reviewing the record, we conclude that Griffin
knowingly and voluntarily waived her right to appeal her
conviction and sentence, retaining only her right to raise
2
claims based on prosecutorial misconduct or ineffective
assistance of counsel. We find that Griffin’s challenges to the
calculation of her sentence fall within the scope of the waiver
and, therefore, we grant in part the Government’s motion to
dismiss.
In order to show prosecutorial misconduct, Griffin
bears the burden of showing that the prosecutor’s conduct was
(1) improper and (2) prejudicially affected the defendant’s
substantial rights so as to deny the defendant a fair trial.
United States v. Alerre, 430 F.3d 681, 689 (4th Cir. 2005). Our
review of the record discloses that the prosecutor’s conduct was
neither improper nor prejudicially affected Griffin’s
substantial rights. Accordingly, we affirm.
Thus, we deny in part the Government’s motion to
dismiss and affirm Griffin’s conviction 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.
DISMISSED IN PART;
AFFIRMED IN PART
3