US v. Peter Smith, No. 09-4394 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4394 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. PETER JAMES SMITH, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Robert J. Conrad, Jr., Chief District Judge. (3:08-cr-00074-RJC-DSC-1) Submitted: July 22, 2010 Decided: July 29, 2010 Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges. Affirmed by unpublished per curiam opinion. Carol Ann Bauer, Morgantown, North Carolina, for Appellant. Anne M. Tompkins, United States Attorney, Charlotte, North Carolina; Amy E. Ray, Assistant United States Attorney, Asheville, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Peter James Smith was convicted by a jury of two counts of carjacking, in violation of 18 U.S.C. § 2119 (2006); two counts of kidnapping, in violation of 18 U.S.C.A. § 1201 (2006 & West Supp. 2010); two counts of use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (2006); previously been exceeding (2006). one and possession convicted year, in of a of a crime violation of firearm after having punishable by 18 § 922(g)(1) U.S.C. a term The district court sentenced Smith to a total of 708 months of imprisonment and Smith now appeals. Finding no error, we affirm. On appeal, rendered ineffective judgment of acquittal Smith argues assistance at the for close that his failing of the trial to counsel move for evidence. a Under Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove a claim of ineffective assistance of counsel a defendant must show (1) that counsel s performance was deficient, and (2) that the deficient performance prejudiced the defense. to the first performance prong, the fell below reasonableness. defendant Id. at 688. an must show objective With respect that standard of In addition, [j]udicial scrutiny of counsel s performance must be highly deferential. 689. counsel s Id. at Under the second prong of the test, [t]he defendant must 2 show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. at 694. Moreover, this court may address a claim of ineffective assistance on direct appeal only if the lawyer s ineffectiveness conclusively appears from United States v. Baldovinos, 434 F.3d 233, 239 (4th the record. Cir. 2006). Smith argues that, had his counsel moved for a judgment of acquittal, his claim regarding the sufficiency of the evidence would have been preserved for appellate review. Smith s argument regarding the sufficiency of the evidence is, however, based on the conflicts between Smith s testimony and the testimonies of the victims at trial. [D]eterminations of credibility are within the sole province of the jury and are not United States v. Burgos, 94 susceptible to judicial review. F.3d 849, citations failed to 863 (4th Cir. omitted). We demonstrate conclusively appears 1996) conclude, that from (internal therefore, ineffective the quotation record. marks Smith that assistance We thus and has of counsel decline to address this claim on direct appeal. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately 3 presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED 4
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