                            UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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