UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4394
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
PETER JAMES SMITH,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00074-RJC-DSC-1)
Submitted: July 22, 2010 Decided: July 29, 2010
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Carol Ann Bauer, Morgantown, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peter James Smith was convicted by a jury of two
counts of carjacking, in violation of 18 U.S.C. § 2119 (2006);
two counts of kidnapping, in violation of 18 U.S.C.A. § 1201
(2006 & West Supp. 2010); two counts of use of a firearm in
furtherance of a crime of violence, in violation of 18 U.S.C.
§ 924(c) (2006); and possession of a firearm after having
previously been convicted of a crime punishable by a term
exceeding one year, in violation of 18 U.S.C. § 922(g)(1)
(2006). The district court sentenced Smith to a total of 708
months of imprisonment and Smith now appeals. Finding no error,
we affirm.
On appeal, Smith argues that his trial counsel
rendered ineffective assistance for failing to move for a
judgment of acquittal at the close of the evidence. Under
Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove a
claim of ineffective assistance of counsel a defendant must show
(1) “that counsel’s performance was deficient,” and (2) “that
the deficient performance prejudiced the defense.” With respect
to the first prong, the defendant must show that counsel’s
performance “fell below an objective standard of
reasonableness.” Id. at 688. In addition, “[j]udicial scrutiny
of counsel’s performance must be highly deferential.” Id. at
689. Under the second prong of the test, “[t]he defendant must
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show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. Moreover, this court
may address a claim of ineffective assistance on direct appeal
only if the lawyer’s ineffectiveness conclusively appears from
the record. United States v. Baldovinos, 434 F.3d 233, 239 (4th
Cir. 2006).
Smith argues that, had his counsel moved for a
judgment of acquittal, his claim regarding the sufficiency of
the evidence would have been preserved for appellate review.
Smith’s argument regarding the sufficiency of the evidence is,
however, based on the conflicts between Smith’s testimony and
the testimonies of the victims at trial. “[D]eterminations of
credibility are within the sole province of the jury and are not
susceptible to judicial review.” United States v. Burgos, 94
F.3d 849, 863 (4th Cir. 1996) (internal quotation marks and
citations omitted). We conclude, therefore, that Smith has
failed to demonstrate that ineffective assistance of counsel
conclusively appears from the record. We thus decline to
address this claim on direct appeal.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid in the decisional
process.
AFFIRMED
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