US v. Jose Pineda, No. 09-4823 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4823 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSE DONILIO PINEDA, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. T. S. Ellis, III, Senior District Judge. (1:08-cr-00520-TSE-3) Submitted: January 28, 2011 Decided: February 17, 2011 Before DUNCAN, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jane C. Norman, BOND & NORMAN, Washington, DC, for Appellant. Neil H. MacBride, United States Attorney, Mary K. Daly, Daniel J. Grooms, Assistant United States Attorneys, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Jose Donilio Pineda was convicted of engaging in the business of dealing in firearms without a license in violation of 18 U.S.C.A. §§ 922(a)(1)(A), 923(a), 924(a)(1)(D) (West 2000 & Supp. 2010) imprisonment. and was sentenced to thirty months of On appeal Pineda raises three issues: (1) whether he received ineffective assistance of trial counsel; (2) whether sufficient evidence supported his conviction; and (3) whether the district court erred by failing to grant him a two-level See U.S. adjustment for having a minor role in the offense. Sentencing Guidelines Manual ( USSG ) (discussing minor participant ). § 3B1.2(b) (2008) For the reasons that follow, we affirm. First, Pineda alleges that his trial counsel provided ineffective assistance by failing to move to sever his trial from his codefendants and thereafter to have Pineda s brother and co-conspirator, Luis Kennedy Guzman, a/k/a Kenny, testify on his behalf. Pineda fails to establish the demanding burden of showing ineffective assistance of counsel on direct appeal. Claims of ineffective assistance of counsel are not cognizable on direct appeal unless ineffective assistance. 192, 198 (4th development of the record conclusively establishes United States v. Richardson, 195 F.3d Cir. 1999). the record, Rather, claims 2 of to allow for ineffective adequate assistance generally should be brought in a 28 U.S.C.A. § 2255 (West Supp. 2010) motion. United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994). Next, Pineda alleges that supported by substantial evidence. motion for acquittal de novo. 681, 693 (4th Cir. 2005). his conviction was not We review a denial of a United States v. Alerre, 430 F.3d Where, as here, the motion was based on a claim of insufficient evidence, the verdict of a jury must be sustained if there is substantial evidence, taking the view most favorable to the Government, to support it. Glasser v. United States, 315 U.S. 60, 80 (1942); United States v. Burgos, 94 F.3d 849, 862 (4th cir. 1996). In making this determination, we consider circumstantial as well as direct evidence, and allow the government the benefit of all reasonable inferences from the facts proven to those sought to be established. v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). United States If evidence supports different, reasonable interpretations, the jury decides which interpretation to believe. United States v. Murphy, 35 F.3d 143, 148 (4th Cir. 1994). We find the trial revealed substantial evidence that Pineda sold, without a license, the four firearms at issue in his count of conviction (Count 2). Thus, the claim fails. Finally, Pineda alleges that the district court should have given him a two-level downward adjustment for having been a 3 minor participant in the offense under USSG § 3B1.2(b). We find no clear error in the district court s determination that Pineda was not entitled to the reduction. See United States v. Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989) (providing review standard). While Pineda s role in the offense was less than his codefendants, he nonetheless failed to prove by a preponderance of the evidence that he was entitled to the adjustment. United States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991) (giving proof standard), judgment vacated on other grounds by, Kochekian v. United States, 503 U.S. 931 (1992), op. reinstated by, United States v. Kochekian, 977 F.2d 905 (1992). Accordingly, sentence. legal before affirm Pineda s conviction and We dispense with oral argument because the facts and contentions the we court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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