UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4823
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOSE DONILIO PINEDA,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:08-cr-00520-TSE-3)
Submitted: January 28, 2011 Decided: February 17, 2011
Before DUNCAN, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jane C. Norman, BOND & NORMAN, Washington, DC, for Appellant.
Neil H. MacBride, United States Attorney, Mary K. Daly, Daniel
J. Grooms, Assistant United States Attorneys, Alexandria,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jose Donilio Pineda was convicted of engaging in the
business of dealing in firearms without a license in violation
of 18 U.S.C.A. §§ 922(a)(1)(A), 923(a), 924(a)(1)(D) (West 2000
& Supp. 2010) and was sentenced to thirty months of
imprisonment. On appeal Pineda raises three issues: (1) whether
he received ineffective assistance of trial counsel; (2) whether
sufficient evidence supported his conviction; and (3) whether
the district court erred by failing to grant him a two-level
adjustment for having a minor role in the offense. See U.S.
Sentencing Guidelines Manual (“USSG”) § 3B1.2(b) (2008)
(discussing “minor participant”). For the reasons that follow,
we affirm.
First, Pineda alleges that his trial counsel provided
ineffective assistance by failing to move to sever his trial
from his codefendants and thereafter to have Pineda’s brother
and co-conspirator, Luis Kennedy Guzman, a/k/a “Kenny,” testify
on his behalf. Pineda fails to establish the demanding burden
of showing ineffective assistance of counsel on direct appeal.
Claims of ineffective assistance of counsel are not cognizable
on direct appeal unless the record conclusively establishes
ineffective assistance. United States v. Richardson, 195 F.3d
192, 198 (4th Cir. 1999). Rather, to allow for adequate
development of the record, claims of ineffective assistance
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generally should be brought in a 28 U.S.C.A. § 2255 (West Supp.
2010) motion. United States v. Gastiaburo, 16 F.3d 582, 590
(4th Cir. 1994).
Next, Pineda alleges that his conviction was not
supported by substantial evidence. We review a denial of a
motion for acquittal de novo. United States v. Alerre, 430 F.3d
681, 693 (4th Cir. 2005). Where, as here, the motion was based
on a claim of insufficient evidence, the verdict of a jury must
be sustained if there is substantial evidence, taking the view
most favorable to the Government, to support it. Glasser v.
United States, 315 U.S. 60, 80 (1942); United States v. Burgos,
94 F.3d 849, 862 (4th cir. 1996). In making this determination,
we consider circumstantial as well as direct evidence, and allow
the government the benefit of all reasonable inferences from the
facts proven to those sought to be established. United States
v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). If evidence
supports different, reasonable interpretations, the jury decides
which interpretation to believe. United States v. Murphy, 35
F.3d 143, 148 (4th Cir. 1994). We find the trial revealed
substantial evidence that Pineda sold, without a license, the
four firearms at issue in his count of conviction (Count 2).
Thus, the claim fails.
Finally, Pineda alleges that the district court should
have given him a two-level downward adjustment for having been a
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minor participant in the offense under USSG § 3B1.2(b). We find
no clear error in the district court’s determination that Pineda
was not entitled to the reduction. See United States v.
Daughtrey, 874 F.2d 213, 218 (4th Cir. 1989) (providing review
standard). While Pineda’s role in the offense was less than his
codefendants, he nonetheless failed to prove by a preponderance
of the evidence that he was entitled to the adjustment. United
States v. Palinkas, 938 F.2d 456, 460 (4th Cir. 1991) (giving
proof standard), judgment vacated on other grounds by, Kochekian
v. United States, 503 U.S. 931 (1992), op. reinstated by, United
States v. Kochekian, 977 F.2d 905 (1992).
Accordingly, we affirm Pineda’s conviction and
sentence. We dispense 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
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