Vacated by Supreme Court, May 16, 2005 Certiorari granted, May 16, 2005 UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 04-4290

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

RASHAAN CARDELL ROGERS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Malcolm J. Howard, District Judge. (CR-03-43)

Submitted: November 24, 2004 Decided: January 4, 2005

Before NIEMEYER, MICHAEL, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon, Assistant Federal Public Defender, Raleigh, North Carolina, for Appellant. Frank D. Whitney, United States Attorney, Anne M. Hayes, Christine Witcover Dean, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c). PER CURIAM:

Rashaan Rogers appeals from his conviction for possession

of a firearm by a convicted felon. On appeal, he challenges the

district court’s failure to issue limiting instructions and asserts

that the Government’s closing argument constituted prosecutorial

misconduct. After a careful review of the record, we affirm.

Rogers first argues that the district court abused its

discretion by declining his requests for two jury instructions.

See United States v. Ruhe,

(4th Cir. 1999)

(standard of review). A refusal to grant a requested instruction

is reversible error only if the instruction (1) was correct;

(2) was not substantially covered by the court’s charge; and

(3) involved a point so important that failure to give the

instruction seriously impaired the defendant’s defense. United

States v. Lewis,

(4th Cir. 1995). We find that the

failure to issue the requested instructions did not prejudice

Rogers’ defense, and thus, the court did not abuse its discretion.

Next, Rogers raises several claims of prosecutorial

misconduct relating to the closing argument of the Government. A

claim of prosecutorial misconduct is reviewed to determine whether

the conduct complained of so infected the trial with unfairness as

to make the resulting conviction a denial of due process. United

States v. Scheetz,

(4th Cir. 2002). To prevail

under this standard, Rogers must show that “the prosecutor’s

- 2 - remarks or conduct were improper and, second . . . that such

remarks or conduct prejudicially affected his substantial rights”

so as to deprive him of a fair trial.

As to Rogers’ claims

that were not preserved at trial, the standard is modified to the

degree that he must demonstrate plain error. United States v.

Olano,

(1993). We find no resulting prejudice

from any of the prosecutor’s comments.

Accordingly, we affirm Rogers’ conviction. In addition,

because Rogers’ counsel has filed an appropriate brief, we deny his

motion to file a supplemental pro se brief and decline to address

any issues raised in his pro se Fed. R. App. P. 28(j) filing. 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.

AFFIRMED

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