UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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 postconviction 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