                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 13-4654


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DEMARCUS MANDELL BROWN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.  Samuel G. Wilson, District
Judge. (7:12-cr-00057-SGW-1)


Submitted:   May 30, 2014                    Decided:    June 13, 2014


Before DUNCAN and    KEENAN,   Circuit   Judges,   and   DAVIS,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Rebecca S. Colaw, REBECCA S. COLAW, P.C., Suffolk, Virginia, for
Appellant.   Timothy J. Heaphy, United States Attorney, Jennifer
S. DeGraw, Special Assistant United States Attorney, Roanoke,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Demarcus Mandell Brown pleaded guilty pursuant to a

written plea agreement to distributing cocaine, in violation of

21 U.S.C. § 841(a)(1), (b)(1)(C) (2012) (Count Four), using and

carrying a firearm during and in relation to, and in furtherance

of, a drug trafficking crime, in violation of 18 U.S.C. § 924(c)

(2012) (Count Five), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1) (2012) (Count Six).

On appeal, Brown alleges that: (1) the district court improperly

refused    to    suppress    evidence     seized    from   his   residence       and

denied his request for a hearing pursuant to Franks v. Delaware,

438 U.S. 154 (1978); (2) the district court erred in denying his

motion to withdraw his guilty plea; (3) counsel was ineffective;

(4) the district court erred in failing to find a violation

under Brady v. Maryland, 373 U.S. 83 (1963); and (5) testimony

during    the    suppression    hearing      violated    his    Sixth     Amendment

rights.    We affirm.

            Following       multiple    controlled      purchases    of       cocaine

from Brown, conducted through a confidential informant, Roanoke

City    Police    Detective     Kelly    Jennings     applied    for      a    search

warrant of Brown’s residence, supporting it with his affidavit.

The affidavit described the controlled transactions and averred

that,    prior    to   a   certain     transaction,     detectives      saw     Brown

arrive at his residence, and then quickly enter and exit the

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building.      The affidavit stated that Jennings then viewed Brown

arrive at the agreed location for the transaction and conduct an

exchange of cocaine with the confidential informant.                    Based on

Jennings’      application,     a    search    warrant   issued   for    Brown’s

residence.

              Following     a       subsequent    controlled      transaction,

officers arrested Brown and conducted a search of his residence,

seizing drugs, drug paraphernalia, and a loaded firearm.                   Brown

moved to suppress the evidence and for a Franks hearing.                  Franks

v. Delaware, 438 U.S. 154 (1978).              The district court conducted

two separate motions hearings and heard testimony from Jennings,

one   other    police     detective,     and   Brown.     After   hearing    the

testimony and the parties’ arguments, the court found that Brown

failed to make the necessary showing and denied his suppression

motion.

              During pretrial preparation, the government learned of

a police incident report (“incident report”) that stated the

confidential informant in Brown’s case lied to Jennings in a

controlled drug transaction in an unrelated investigation. 1                 The

following day, the government sent defense counsel a complete




      1
       The incident         report and the events contained therein
postdated Jennings’         application for the search warrant of
Brown’s residence.



                                         3
copy of the incident report.                    Brown entered his guilty plea

several days later.

           Approximately four months later, Brown filed a pro se

motion to withdraw his guilty plea or for a new trial.                        Brown

asserted that he learned of the incident report only after his

guilty plea, and alleged error by both the government and his

counsel.      At    the   scheduled    sentencing        hearing,   the   district

court denied Brown’s withdrawal motion, and sentenced Brown to a

total of 285 months’ imprisonment.                Brown timely appeals.

(1)   Motion to Suppress and for a Franks Hearing.                   Brown first

contends that the district court erred in denying his motion to

suppress and for a Franks hearing, contending that Jennings made

deliberately false statements in his affidavit supporting the

warrant    application       and     that       these   false   statements    were

material   to      the    probable    cause       determination.     This     court

reviews the legal determinations underlying a district court’s

denial of a Franks hearing de novo, and its factual findings for

clear error.        United States v. Allen, 631 F.3d 164, 171 (4th

Cir. 2011).        A defendant challenging the validity of a warrant

is entitled to a hearing if he makes a preliminary showing that:

“(1) the warrant affidavit contained a deliberate falsehood or

statement made with reckless disregard for the truth and (2)

without the allegedly false statement, the warrant affidavit is

not sufficient to support a finding of probable cause.”                      United

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States v. Fisher, 711 F.3d 460, 468 (4th Cir. 2013) (internal

quotation marks omitted).              A defendant bears a heavy burden to

establish     the    need    for   a    Franks    hearing,   United      States    v.

Jeffus, 22 F.3d 554, 558 (4th Cir. 1994), and “allegations of

negligence or innocent mistake are insufficient.”                    United States

v. Tate, 524 F.3d 449, 454 (4th Cir. 2008) (internal quotation

marks omitted).

            Brown    primarily       argues    that    Jennings   falsely      stated

that detectives observed Brown arrive at his residence, and then

quickly enter and exit this building, rather than merely seeing

Brown in the area outside his or another building.                         We agree

with the district court that Brown has not established by a

preponderance of the evidence that the search warrant affidavit

contained     statements      that      were     intentionally      or   recklessly

false, rather than merely negligent.                  Furthermore, the district

court found credible the detectives’ testimony regarding their

observations and the search warrant application, and we defer to

the   district      court’s   credibility        determination.          See   United

States   v.    Abu    Ali,     528     F.3d    210,    232   (4th    Cir.      2008).

Therefore, we conclude that the district court did not err in

denying Brown’s suppression motion.

(2)   Motion to Withdraw Plea.                Brown argues that the district

court improperly denied the motion to withdraw his guilty plea,

asserting that had he known about the incident report, he would

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not have pleaded guilty.           We review for abuse of discretion a

district court’s denial of a motion to withdraw a guilty plea.

United States v. Nicholson, 676 F.3d 376, 383 (4th Cir. 2012).

“A defendant has no absolute right to withdraw a guilty plea[.]”

Id. at 383-84 (internal quotation marks omitted).                        Instead, the

defendant bears the burden of “show[ing] a fair and just reason”

for withdrawal.       Fed. R. Crim. P. 11(d)(2)(B); Nicholson, 676

F.3d   at   383.     We    conclude   that       the   district     court      properly

applied the factors set forth in United States v. Moore, 931

F.2d 245, 248 (4th Cir. 1991), and did not abuse its discretion

in denying Brown’s motion.

(3)    Ineffective    Assistance      of       Counsel.     Brown’s       ineffective

assistance claim—that counsel was ineffective in failing to show

him the incident report until after the guilty plea hearing—is

not    cognizable     on    direct    appeal.             Unless    an     attorney’s

ineffectiveness      is    conclusively        apparent    on     the   face    of   the

record,     ineffective      assistance          claims     are     not     generally

addressed on direct appeal.           United States v. Benton, 523 F.3d

424, 435 (4th Cir. 2008).          Instead, such claims should be raised

in a motion brought pursuant to 28 U.S.C. § 2255 (2012), in

order to permit sufficient development of the record.                           United

States    v.   Baptiste,    596   F.3d     214,    216    n.1   (4th     Cir.   2010).

Because     there    is     no    conclusive        evidence       of     ineffective



                                           6
assistance of counsel on the face of the record, we find that

this claim should be raised, if at all, in a § 2255 motion.

(4)   Brady Violation.     In order to establish a Brady violation,

a defendant must show that the government failed to disclose

“evidence favorable to an accused . . . where the evidence is

material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.”         Brady, 373 U.S. at

87.   Evidence is favorable to the accused not only if it would

exculpate the accused, but also if it could be used to impeach a

government witness.       United States v. Ellis, 121 F.3d 908, 914

(4th Cir. 1997).    “The Brady right, however, is a trial right .

. ., and exists to preserve the fairness of a trial verdict and

to minimize the chance that an innocent person would be found

guilty.”    United States v. Moussaoui, 591 F.3d 263, 285 (4th

Cir. 2010).   “[T]he Constitution does not require the Government

to disclose material impeachment evidence prior to entering a

plea agreement with a criminal defendant.”            United States v.

Ruiz, 536 U.S. 622, 628, 633 (2002).            Here, because no trial

occurred,   Brown   may   not   assert   a   constitutional   violation. 2

Moussaoui, 591 F.3d at 285.




      2
       Moreover, as the district court concluded, the government
turned over the incident report to defense counsel prior to
Brown’s guilty plea hearing.



                                    7
(5)   Sixth        Amendment.           Finally,       Brown    argues         that    Jennings’

testimony at the suppression hearing regarding statements made

by    the    confidential          informant         violated       his    Sixth       Amendment

rights.          “We     review    alleged       Confrontation            Clause      violations

under the de novo standard of review.”                         United States v. Lighty,

616 F.3d 321, 376 (4th Cir. 2010).                            The Confrontation Clause

guarantees a criminal defendant the right “to be confronted with

the witnesses against him.”                   U.S. Const. amend. VI.                 In Crawford

v. Washington, the Supreme Court held that the Confrontation

Clause bars “admission of testimonial statements of a witness

who   did        not    appear     at    trial       unless    he    was       unavailable        to

testify, and the defendant had a prior opportunity for cross-

examination.”           541 U.S. 36, 53–54 (2004).

                 But the admission of non-hearsay does not implicate a

defendant’s        confrontation          rights.        See     id.      at    60    n.9       (“The

Clause . . . does not bar the use of testimonial statements for

purposes         other    than     establishing          the    truth          of    the     matter

asserted.”);           Fed.   R.   Evid.      801(c)     (defining         an       out-of-court

statement as hearsay if it is “offered in evidence to prove the

truth       of    the     matter        asserted”).            Out-of-court           statements

explaining         or     providing       context        for     the       actions         of    law

enforcement officers are routinely admitted as non-hearsay.                                      See

United      States       v.   Love,     767    F.2d    1052,     1063      (4th       Cir.      1985)

(holding that agent’s testimony concerning information received

                                                 8
from another agent “was offered not for its truth but only to

explain why the officers and agents made the preparations that

they did in anticipation of the appellant’s arrest.”).                          Here,

the   confidential   informant’s      statements         to    Jennings    were   not

offered    for   their    truth,   but       for   the    limited,     permissible

purpose of explaining Jennings’ ensuing actions regarding the

search warrant.      Because the statements explained context and

motivation, we conclude that the testimony did not implicate the

Confrontation Clause.

           Accordingly,      we    affirm      the       judgment    below.       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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