United States v. Quick , 267 F. App'x 205 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4188
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JASON ALLEN QUICK,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Beckley. Thomas E. Johnston,
District Judge. (5:06-cr-00183)
Submitted: January 17, 2008 Decided: January 22, 2008
Before TRAXLER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
David C. Smith, SMITH & SCANTLEBURY, L.C., Bluefield, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney; John L. File, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jason Allen Quick appeals his conviction and 140-month
sentence imposed following his guilty plea to manufacturing
methamphetamine. On appeal, he challenges the district court’s
refusal to grant him a sentencing reduction for acceptance of
responsibility, the inclusion in relevant conduct of the amount of
methamphetamine he manufactured for his personal consumption, and
the effectiveness of his trial counsel. Finding no error, we
affirm Quick’s conviction and sentence.
First, Quick asserts that the district court erred by
denying him a downward adjustment for acceptance of responsibility.
See U.S. Sentencing Guidelines Manual § 3E1.1 (2006). Although
Quick pled guilty to manufacturing methamphetamine and readily
admitted his offense conduct, the district court denied him the
acceptance of responsibility reduction because he used illegal
drugs while he was on pretrial release. The district court did not
clearly err by denying the acceptance of responsibility reduction
based on Quick’s continued involvement in criminal conduct. See
USSG § 3E1.1, comment. (n.3); United States v. Ruhe, 191 F.3d 376,
388 (4th Cir. 1999) (providing standard).
Quick next argues that the court erred by including as
relevant conduct the amounts of methamphetamine that he
manufactured for his personal use. He relies on a number of cases,
which hold that personal use amounts are not counted when the
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defendant is convicted of possession with intent to distribute,
conspiracy to distribute, or conspiracy to possess with intent to
distribute. Quick was convicted of manufacturing methamphetamine.
Unlike in the case of distribution where an amount intended for
personal use would not be distributed, in this case, Quick
manufactured all of the methamphetamine for which he was held
accountable, whether he ultimately used it or sold it. Thus, we
find that the district court properly included in Quick’s relevant
conduct the total amount of methamphetamine he manufactured,
without reducing it by the amount made for personal use. See
United States v. Wood, 57 F.3d 913 (10th Cir. 1995) (applying same
reasoning where defendant convicted of manufacturing marijuana).
Quick’s last claim is that counsel was ineffective for
failing to move to suppress evidence. Claims of ineffective
assistance of trial counsel are not cognizable on direct appeal
unless such ineffectiveness conclusively appears from the record.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999);
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). Rather,
such claims should be raised, if at all, in a proceeding under 28
U.S.C. § 2255 (2000). Because the record does not conclusively
establish that counsel provided ineffective assistance, we decline
to consider the merits of this issue on direct appeal.
In conclusion, we affirm Quick’s conviction and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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