                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4242


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

MICHAEL JAY BRACKETT,

                Defendant – Appellant.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:08-cr-00056-JPB-DJJ-2)


Submitted:   March 10, 2010                 Decided:   April 12, 2010


Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Byron Craig Manford, Martinsburg, West Virginia, for Appellant.
Sharon L. Potter, United States Attorney, Erin K. Reisenweber,
Assistant United States Attorney, Martinsburg, West Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Michael Jay Brackett appeals his convictions and 210

month sentence following a jury trial on one count of conspiring

to possess with intent to sell stolen firearms, in violation of

18 U.S.C. § 922(j) (2006) (“Count One”), and one count of being

a felon in possession of a firearm and ammunition, in violation

of §§ 922(g)(1) & 924 (2006) (“Count Six”).                We affirm.

               Brackett’s    first    argument       on   appeal        is       that    the

district court erred in denying his Fed. R. Crim. P. 29 motion

for   judgment      of   acquittal    and     his    motion       for   a    new        trial

because, according to Brackett, the evidence was insufficient to

sustain his convictions.             This court reviews the denial of a

Rule 29 motion de novo, United States v. Alerre, 430 F.3d 681,

693 (4th Cir. 2005), and reviews the denial of a Rule 33 motion

for   new      trial   for   abuse   of   discretion.             United     States       v.

Fulcher, 250 F.3d 244, 249 (4th Cir. 2001).                        To determine if

there    was    sufficient    evidence      to   support      a    conviction,          this

court considers whether, taking the evidence in the light most

favorable to the Government, substantial evidence supports the

jury’s      verdict.     Glasser     v.   United     States,      315   U.S.       60,     80

(1942).

               We have reviewed the materials on appeal and determine

that the evidence presented, viewed in the light most favorable

to    the     Government,     was    more     than     sufficient           to     sustain

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Brackett’s         convictions       on    Count        One    and        Six.            Therefore,

Brackett’s first claim is without merit.

               Next, Brackett argues that the district court erred by

not, sua sponte, giving a limiting instruction regarding his

prior    felony      convictions.            Brackett     failed          to    object          in   the

district       court      to   the     court’s        failure       to     give       a    limiting

instruction.           Accordingly,          his      claim    is    reviewed             for    plain

error.        See United States v. Olano, 507 U.S. 725, 732 (1993)

(providing standard).

               Assuming without deciding that the district court was

required      to    sua    sponte    give       a    limiting       instruction,            but      see

United     States         v.   Echeverri-Jaramillo,                 777        F.2d       933,       937

(4th Cir. 1985), the alleged error had no effect on Brackett’s

substantial        rights      given      the       abundant    evidence          against            him.

Moreover, the district court did instruct the jury that “[t]he

defendant is not on trial for any facts--or any acts or crimes

not alleged in the indictment,” and the parties stipulated to

the    fact    that       Brackett     had      previously       been          convicted         of     a

felony.       No evidence of the prior offense conduct was presented

to the jury.          Accordingly, this claim fails.

               Brackett also argues that a portion of the district

court’s general jury charge shifted the burden of proof from the

United States to him.                The district court instructed the jury

that

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       [c]ommon sense is no substitute for evidence, [y]ou
       are permitted to use your common sense in evaluating
       all   the   evidence,  including   the  circumstantial
       evidence, which the Government has presented to you in
       an attempt to prove beyond a reasonable doubt the
       guilt of Michael Jay Brackett.

According to Brackett, the last clause of that charge should

have    read     “which     the    Government       has     presented     to    you   in   an

attempt     to      prove       beyond   a     reasonable      doubt      the    guilt     or

innocence of Michael Jay Brackett.”

               The Government was not required to prove Brackett’s

innocence      beyond       a    reasonable        doubt,    only   his    guilt.          The

district court properly instructed the jury that the burden of

proof never shifted from the Government to Brackett and that

Brackett was innocent unless and until the Government proved his

guilt     beyond      a     reasonable        doubt.        Accordingly,        Brackett’s

challenge to the jury instruction fails.

               Brackett also contends that the district court erred

by finding that he obstructed or attempted to obstruct justice

and enhancing his advisory guidelines range two levels pursuant

to USSG § 3C1.1.            A district court’s factual findings, including

those that serve as a basis for a § 3C1.1 obstruction of justice

enhancement, are reviewed for clear error.                          United States v.

Kiulin, 360 F.3d 456, 460 (4th Cir. 2004).

               At     Brackett’s             sentencing        hearing,         Brackett’s

co-defendant, Crum, testified that he wrote a letter recanting


                                               4
his earlier statement to law enforcement because he believed

Brackett would harm him if he did not.                           The co-defendant was

familiar        with     Brackett’s          violent      past     and       had     received

information       that    Brackett       had       made   a   threat        against    Crum’s

mother’s        life.      The     district          court    found      this       testimony

credible, a finding we do not reassess on appeal.                                  See United

States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).                                 Based on

the evidence presented, the district court did not clearly err

in applying the § 3C1.1 enhancement.

            Next, although Brackett concedes that his sentence was

within the statutory maximum and within the advisory guideline

range,     he    asserts     that       he    was     sentenced        in    violation     of

Apprendi v.       New    Jersey,       530    U.S.     466    (2000).        Specifically,

Brackett challenges the sentencing court’s finding that he had a

penchant    for     violence     after        hearing     about    Brackett’s         alleged

threats    against       Crum    and    Crum’s       mother      and   about       Brackett’s

alleged violence toward others.                     To the extent Brackett claims

his sentence was enhanced based on his prior criminal history,

Apprendi specifically excepted prior criminal history from the

facts that must be submitted to a jury.                        Apprendi, 530 U.S. at

490.     Also, to the extent that Brackett alleges the district

court based his sentence on uncharged prior bad acts that were

not admitted to or found beyond a reasonable doubt, his claim

fails because, following United States v. Booker, 543 U.S. 220

                                               5
(2005), a sentencing court continues to make decisions about

sentencing factors by a preponderance of the evidence.                               United

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005).                          Accordingly,

Brackett’s Apprendi claim fails.

           Brackett       next       asserts      that       his    counsel        rendered

ineffective      assistance          by    failing      to    request        a    limiting

instruction,      failing       to    object      at     various         points    in   the

Government’s case in chief, and failing to provide clarification

through cross-examination.                Claims of ineffective assistance of

counsel are not cognizable on direct appeal unless the record

conclusively      establishes         that       counsel      provided       ineffective

assistance.      United States v. Baldovinos, 434 F.3d 233, 239 (4th

Cir. 2006).      We have reviewed the materials submitted on appeal

and find that the record does not conclusively establish that

counsel   provided      ineffective           assistance.            Accordingly,        we

decline to address this issue on direct appeal.

           Finally, Brackett claims that the cumulative weight of

all errors at trial warrants a new trial.                           Brackett has not

demonstrated     that     multiple         errors      occurred;         therefore,     the

cumulative error doctrine does not apply.                     See    United States v.

Martinez, 277 F.3d 517, 532 (4th Cir. 2002).

           For    these     reasons,        we   affirm      Brackett’s      convictions

and sentence.      We dispense with oral argument as the facts and

legal   contentions       are    adequately        presented        in    the     materials

                                             6
before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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