United States v. Mack Brooks , 599 F. App'x 85 ( 2015 )

UNPUBLISHED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 Decided: April 2, 2015
Before AGEE and FLOYD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 co-
defendant’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 conduct “upon information derived from active drug
users and addicts,” primarily the trial testimony of Jason
McClure whose “story changed in a manner to improve the
testimony supporting the conspiracy charge and in ways that
tended to increase the relevant conduct.” (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 with which he was directly
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involved and, in the case of a jointly undertaken criminal
activity, all reasonably foreseeable quantities of contraband
that were within the scope of the criminal activity that he
jointly undertook.” U.S. Sentencing Guidelines Manual § 1B1.3
cmt. n.2 (2012). The government must prove the drug quantity
attributable to the defendant by a preponderance of the
evidence. United States v. Carter, 300 F.3d 415, 425 (4th Cir.
2002). The district court may rely on information in the
presentence report unless the defendant affirmatively shows that
the information is inaccurate or unreliable. Id. A district
court’s findings on drug quantity are generally factual in
nature, and therefore are reviewed by this court for clear
error. Id. 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
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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 district court to construe his motion as a request for
substitution of counsel.
To the extent Brooks is seeking to raise an ineffective
assistance of counsel claim as opposed to challenging the
district court’s denial of his motion for a new trial or
judgment of acquittal, we conclude that the record does not
conclusively establish ineffective assistance and thus his claim
should be raised, if at all, in a 28 U.S.C. § 2255 (2012)
motion. Unless an attorney’s ineffectiveness conclusively
appears on the face of the record, ineffective assistance claims
are not generally addressed on direct appeal. United States v.
Benton, 523 F.3d 424, 435 (4th Cir. 2008). Instead, such claims
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should be raised in a § 2255 motion in order to permit
sufficient development of the record. United 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
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