                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 14-4302


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

ROCCI WADE,

                 Defendant - Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.    John Preston Bailey,
Chief District Judge. (5:13-cr-00030-JPB-JES-5)


Submitted:    October 15, 2014             Decided:   November 4, 2014


Before WILKINSON, MOTZ, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Patricia Valentino Kutsch, KUTSCH LAW OFFICES, Wheeling, West
Virginia, for Appellant.     William J. Ihlenfeld, II, United
States Attorney, Randolph J. Bernard, John C. Parr, Assistant
United States Attorneys, Wheeling, West Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM

             Rocci Wade appeals his convictions after a jury trial

of conspiracy to possess with the intent to distribute and to

distribute     oxycodone,      in   violation          of   21   U.S.C.   §§     846,

841(b)(1)(C), and distribution of oxycodone, in violation of 21

U.S.C. § 841(a)(1), 841(b)(1)(C).               We affirm.

             On appeal, Wade first asserts prosecutorial misconduct

based on two comments during closing argument: (1) “that this

case   has    basically      everything        an    investigation     would     have,

except what you often don’t have.               And that’s a confession,” and

(2) that     Wade’s   co-defendants        were       not   promised   anything    in

exchange for their testimony, were not obligated to testify, and

were only asked to cooperate fully and truthfully, in exchange

for which the Government would agree to recommend a one-level

downward departure at sentencing.

             “To prevail on a claim of prosecutorial misconduct, a

defendant     must    show    (1)   that       the    prosecutor’s     remarks    and

conduct were, in fact, improper and (2) that such remarks or

conduct prejudiced the defendant to such an extent as to deprive

the defendant of a fair trial.”                     United States v. Allen, 491

F.3d 178, 191 (4th Cir. 2007).                 This court generally reviews a

district court’s ruling on comments made during closing argument

for an abuse of discretion.            See United States v. Runyon, 707

F.3d 475, 491 (4th Cir. 2013).

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          The    Constitution          does    not   permit    the   government    to

comment on the accused’s silence.                Bates v. Lee, 308 F.3d 411,

420 (4th Cir. 2002).           The test is whether the “language used

[was] manifestly intended to be, or was [] of such character

that the jury would naturally and necessarily take it to be a

comment on the failure of the accused to testify[.]”                         United

States v. Anderson, 481 F.2d 685, 701 (4th Cir. 1973), aff’d,

417 U.S. 211 (1974).

          We    have     reviewed      the     record    and   conclude   that    the

prosecutor’s    remark    on     the    lack    of   a   confession    neither    was

intended nor would naturally be taken as a comment on Wade’s

failure to testify.         We thus conclude that the district court

did not abuse its discretion in denying Wade’s motion for a

mistrial based on these remarks.

          Wade     did     not    raise        his   claim     arising    from    the

prosecutor’s comments on his co-defendants’ plea agreements in

the district court.         Thus, this court reviews that claim for

plain error only.        United States v. Alerre, 430 F.3d 681, 689

(4th Cir. 2005).

          We    have     reviewed      the     record    and   conclude   that    the

prosecutor’s comments on Wade’s co-defendants’ plea agreements

accurately described the substance of the agreements.                      We thus

conclude that the prosecutor did not engage in any misconduct.



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               Wade next asserts error in the admission of witness

testimony, which allegedly violated Brady v. Maryland, 373 U.S.

83 (1963).          The prosecution disclosed, before trial, that the

witness in question stated in 2013 that he had bought drugs from

Wade “for at least two years,” prior to the interview.                                       At

trial, the witness testified that he began purchasing drugs from

Wade in “late 2007-early 2008.”

               To establish a due process violation under Brady, Wade

must    prove       that:   (1)    the       prosecution       withheld       or   suppressed

evidence; (2) the evidence is favorable; and (3) the evidence is

material to the defense.                 See Moore v. Illinois, 408 U.S. 786,

794-95 (1972).          Evidence is material when there is a reasonable

probability         that,    had       the    evidence         been    disclosed      to    the

defense, the result of the proceeding would have been different.

A    reasonable        probability           is       a    probability     sufficient       to

undermine       confidence        in   the     outcome.          See   United      States    v.

Bagley, 473 U.S. 667, 682 (1985).

               We    have    reviewed        the      record    and    conclude      that   the

prosecution neither withheld nor suppressed favorable evidence.

We   thus      conclude      that      the     district        court    did    not    err    in

admitting such testimony.                    Accordingly, we affirm the district

court’s judgment.             We dispense with oral argument because the

facts    and    legal       contentions        are        adequately    presented      in   the



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materials   before   this   court   and   argument   would   not   aid   the

decisional process.

                                                                   AFFIRMED




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