UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4289
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MATT DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Martin K. Reidinger,
District Judge. (1:13-cr-00043-MR-DLH-1)
Submitted: October 18, 2016 Decided: October 20, 2016
Before WILKINSON, KING, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, 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Unpublished opinions are not binding precedent in this circuit.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
Matt Davis pled guilty in accordance with a written plea
agreement to conspiracy to possess with intent to distribute
bath salts. He was sentenced to 156 months of imprisonment
pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C).
Davis appeals and his attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), concluding that
there are no meritorious issues for appeal, but questioning
whether: (1) the district court complied with Rule 11 in
conducting Davis’ plea hearing; (2) Davis’ decision to pled
guilty was the product of ineffective assistance of counsel; and
(3) Davis’ guilty plea was involuntary due to prosecutorial
misconduct. We affirm.
Because Davis did not attempt to withdraw his guilty plea
in the district court, we review this issue for plain error, see
United States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002)
(stating standard), and find none. A review of Davis’ plea
hearing reveals it was conducted substantially in compliance
with Rule 11 and that Davis knowingly and voluntarily pled
guilty.
Regarding Davis’ ineffective assistance claim, it is well
established that a defendant may raise a claim of ineffective
assistance of counsel on direct appeal if and only if it
conclusively appears from the record that counsel did not
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provide effective assistance. United States v. Galloway, 749
F.3d 238, 241 (4th Cir. 2014). Absent such a showing,
ineffective assistance claims should be raised in a motion
brought pursuant to 28 U.S.C. § 2255 (2012), in order to permit
sufficient development of the record. United States v.
Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Here, the
record does not conclusively show that counsel provided
ineffective assistance; thus, the claim is properly raised, if
at all, in a § 2255 motion rather than on direct appeal.
To establish prosecutorial misconduct, Davis must
demonstrate that the prosecutor’s conduct was improper and that
it prejudicially affected his substantial rights. United States
v. Caro, 597 F.3d 608, 624-25 (4th Cir. 2010); see also United
States v. Armstrong, 517 U.S. 456, 464 (1996) (noting
presumption of regularity accorded prosecutorial decisions).
Because Davis did not raise this issue in the district court,
our review is for plain error, United States v. Alerre, 430 F.3d
681, 689 (4th Cir. 2005), and we find none.
Pursuant to Anders, we have reviewed the entire record and
have found no meritorious issues for appeal. * Accordingly, we
deny Davis’ motion to strike counsel’s brief and affirm the
*
This includes review of the issues raised in Davis’ pro se
supplemental brief.
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district court’s judgment. This court requires that counsel
inform Davis, in writing, of the right to petition the Supreme
Court of the United States for further review. If Davis
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 Davis. 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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