US v. Mack Brooks, No. 14-4660 (4th Cir. 2015)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 14-4660 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MACK BROOKS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of West Virginia, at Parkersburg. Thomas E. Johnston, District Judge. (6:12-cr-00059-2) Submitted: March 25, 2015 Before AGEE and Circuit Judge. FLOYD, Decided: Circuit Judges, and April 2, 2015 HAMILTON, Senior Affirmed by unpublished per curiam opinion. Stephen D. Herndon, Wheeling, West Virginia, for Appellant. R. Booth Goodwin II, United States Attorney, John J. Frail, Assistant United States Attorney, Charleston, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Following a jury trial, Mack Brooks was convicted of conspiracy to distribute oxycodone and oxymorphone, in violation of 21 U.S.C. § 846 (2012). The district court sentenced him to 240 months of imprisonment. Brooks appeals, challenging the drug quantity attributable to him for sentencing purposes and the district court’s denial of his pro se motion for a judgment of acquittal or a new trial. Finding no error, we affirm. Brooks’ primary claim on appeal is that the district court erred in determining the drug quantity attributable to him for sentencing purposes. Although Brooks acknowledges that we already upheld the probation officer’s calculations in his codefendant’s case, United States v. Dawkins, 584 F. App’x 124 (4th Cir. 2014) (No. 14-4021), cert. denied, 135 S. Ct. 1014 (2015), he claims that the district court erred in basing his relevant users conduct and McClure testimony “upon addicts,” whose primarily “story supporting information the changed the in derived trial a conspiracy from testimony manner charge tended to increase the relevant conduct.” active to and of improve in ways drug Jason the that (Petitioner’s Br. at 9-10). Under the Sentencing Guidelines, a defendant convicted of conspiring to distribute controlled substances “is accountable for all quantities of contraband 2 with which he was directly involved and, activity, all in the case reasonably of a jointly foreseeable undertaken quantities of criminal contraband that were within the scope of the criminal activity that he jointly undertook.” cmt. n.2 (2012). attributable evidence. 2002). to U.S. Sentencing Guidelines Manual § 1B1.3 The government must prove the drug quantity the defendant by a preponderance of the United States v. Carter, 300 F.3d 415, 425 (4th Cir. The district court may rely on information in the presentence report unless the defendant affirmatively shows that the information is inaccurate or unreliable. court’s findings nature, and error. Id. on therefore drug are quantity are reviewed by Id. generally this court A district factual for in clear To reverse, we must be “‘left with the definite and firm conviction that a mistake has been committed.’” United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). Based on our review of the record, we find no clear error in the district court’s conclusion that the probation officer arrived at a reasonable and conservative estimate of relevant conduct based on McClure’s testimony. Although Brooks attacks McClure’s credibility as a “drug user and addict,” the district court aptly noted that, in returning a guilty verdict, the jury clearly found McClure credible. See United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (providing that credibility 3 determinations are for the trier of fact, not the reviewing court). Brooks also argues that counsel was ineffective for failing to support his pro se motion for a new trial or judgment of acquittal. To the extent that Brooks challenges the district court’s denial of his motion as untimely under either Fed. R. Crim. P. 29 or 33, we find no abuse of discretion. Although Brooks suggests that the district court should have construed his motion as a request for substitution of counsel, Brooks clearly requested a new trial or a judgment of acquittal in his motion and did not allege any concerns about counsel representing him at sentencing. Thus, there was no basis for the his district court to construe motion as a request for substitution of counsel. To the extent Brooks is seeking to raise an ineffective assistance of counsel district court’s judgment of claim denial acquittal, of we as his opposed motion conclude that to for the challenging a new record the trial or does not conclusively establish ineffective assistance and thus his claim should motion. be raised, Unless if an at all, in attorney’s a 28 U.S.C. ineffectiveness § 2255 (2012) conclusively appears on the face of the record, ineffective assistance claims are not generally addressed on direct appeal. Benton, 523 F.3d 424, 435 (4th Cir. 2008). 4 United States v. Instead, such claims should be sufficient raised in a development § 2255 of the motion in record. order United to permit States v. Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010). Accordingly, we affirm the criminal judgment. We dispense with oral argument because the facts and legal contentions are adequately expressed in the materials before this court and argument would not aid the decisional process. AFFIRMED 5
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