United States v. Pineda

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4823

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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