UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4754
ERIC L. JACKSON, a/k/a Tango,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of West Virginia, at Wheeling.
Frederick P. Stamp, Jr., District Judge.
(CR-01-4)
Submitted: April 29, 2003
Decided: May 20, 2003
Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Jeffrey Alan Holmstrand, MCDERMOTT & BONENBERGER,
P.L.L.C., Wheeling, West Virginia, for Appellant. Robert H. McWil-
liams, Jr., Acting United States Attorney, Sam G. Nazzaro, Assistant
United States Attorney, Sharon L. Potter, Assistant United States
Attorney, Wheeling, West Virginia, for Appellee.
2 UNITED STATES v. JACKSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Eric L. Jackson appeals his conviction following a jury trial of one
count of conspiracy to possess with intent to distribute more than fifty
grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(iii), 846 (2000), one count of distribution of cocaine base
within 1000 feet of a school in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(C), 860, one count of possession with intent to distribute more
than five grams of cocaine base within 1000 feet of a school in viola-
tion of 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(iii), 860, and one count of
possession with intent to distribute cocaine within 1000 feet of a
school in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 860, and his
sentence of 360 months in prison and five years of supervised release.
We affirm.
First, Jackson argues his indictment was insufficient under
Apprendi v. New Jersey, 530 U.S. 466 (2000). Because drug quanti-
ties were charged in the indictment and submitted to the jury, we find
no error.
Second, Jackson argues the district court improperly amended the
indictment by permitting the jury to consider drug quantities by
means of a special interrogatory. Jackson also argues the district court
submitted an improper jury instruction stating the evidence did not
have to establish the alleged amount of cocaine, but rather that a mea-
surable amount of cocaine or cocaine base was in fact the subject of
the acts charged. Because Jackson failed to object to the jury instruc-
tions in the district court, we review for plain error. See United States
v. Kinter, 235 F.3d 192, 199 (4th Cir. 2000). Under this standard, this
Court exercises its discretion only to correct errors that are plain,
material, or affecting substantial rights, and that seriously affect the
fairness, integrity or public reputation of judicial proceedings. United
States v. Olano, 507 U.S. 725, 731-32 (1993). When jury instructions
UNITED STATES v. JACKSON 3
are challenged on appeal, the issue is whether, taken as a whole, the
instructions fairly stated the controlling law. United States v. Cobb,
905 F.2d 784, 788-89 (4th Cir. 1990). We have reviewed the jury
instructions and conclude, taken as a whole, the instructions fairly
stated the controlling law.
Next, Jackson argues 21 U.S.C. § 860 is unconstitutional under the
Commerce Clause. We reject Jackson’s Commerce Clause argument
finding it contrary to overwhelming authority. See United States v.
Woodson, 300 F.3d 985, 992-93 (8th Cir. 2002) (collecting cases
upholding § 860 against Commerce Clause challenges).
Jackson argues the evidence presented at trial was insufficient to
support his conviction. A defendant challenging the sufficiency of the
evidence to support a conviction "must overcome a heavy burden."
United States v. Hoyte, 51 F.3d 1239, 1245 (4th Cir. 1995). We must
sustain the verdict if there is substantial evidence, taken in the light
most favorable to the Government, to support the conviction. Glasser
v. United States, 315 U.S. 60, 80 (1942). The jury weighs the credibil-
ity of the evidence, and credibility determinations are not susceptible
to judicial review. United States v. Burgos, 94 F.3d 849, 863 (4th Cir.
1996) (en banc). We have reviewed the record and conclude the evi-
dence was sufficient to support Jackson’s conviction.
Next, Jackson argues the district court erred in calculating his sen-
tence because the jury found the conspiracy involved at least fifty
grams of cocaine base and the district court used a total of 30,010
grams of cocaine base to calculate his sentence under U.S. Sentencing
Guidelines § 2D1.1 (2000). To the extent Jackson asks this Court to
reconsider Kinter, we may not overrule the decision of a prior panel.
See Brubaker v. City of Richmond, 943 F.2d 1363, 1381-82 (4th Cir.
1991). Because Jackson objected to the Pre-Sentence Report’s quan-
tity recommendations, we review the district court’s findings regard-
ing quantity at sentencing for clear error. United States v. Williams,
152 F.3d 294, 301 (4th Cir. 1998). We have reviewed the district
court’s determination and find no clear error.
Finally, Jackson appears to assert the record may include an inef-
fective assistance of counsel claim. Claims of ineffective assistance
of counsel are generally not cognizable on direct appeal unless the
4 UNITED STATES v. JACKSON
trial record conclusively establishes ineffective assistance of counsel.
See United States v. King, 119 F.3d 290, 295 (4th Cir. 1997). To
allow for adequate development of the record, ineffective assistance
of counsel claims generally should be pursued in a 28 U.S.C. § 2255
(2000) proceeding. See United States v. Hoyle, 33 F.3d 415, 418 (4th
Cir. 1994). Because review of the record in this appeal does not con-
clusively establish ineffective assistance of counsel, we conclude
Jackson’s claim should be brought, if at all, in a § 2255 proceeding,
not on direct appeal.
We therefore affirm Jackson’s conviction and sentence. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED