UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 96-4324

CHARLES ALLEN GARY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Shelby.
Lacy H. Thornburg, District Judge.
(CR-96-3)

Submitted: February 10, 1998

Decided: March 31, 1998

Before WILKINS, NIEMEYER, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jack W. Stewart, Asheville, North Carolina, for Appellant. Mark T.
Calloway, United States Attorney, Deborah A. Ausburn, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Charles Allen Gary appeals his conviction by a jury for his role in
a conspiracy to possess with intent to distribute crack cocaine. See 21
U.S.C. § 846 (1994). On several occasions, Gary rented vehicles in
his own name to loan to Horacio Morrilo-Perez. Morrilo-Perez used
the vehicles to transport crack cocaine from New York to North Caro-
lina. As the guilty verdict demonstrated, the jury credited Morrilo-
Perez's testimony that Gary was aware of the purpose of the trips to
New York. In this appeal, Gary contends that his trial counsel was
constitutionally deficient, that his conviction was not supported by
sufficient evidence, and that the prosecutor impermissibly commented
on his decision not to testify on his own behalf. Because we find no
merit to these contentions, we affirm.

Gary suggests that his trial counsel was ineffective for several rea-
sons, emphasizing especially that counsel did not present any evi-
dence on Gary's behalf. Following a federal conviction, a claim of
ineffective assistance of counsel should ordinarily be raised by a
motion under 28 U.S.C.A. § 2255 (West 1994 & Supp. 1997), in the
district court and not on appeal to this court. See United States v.
Fisher, 477 F.2d 300, 302 (4th Cir. 1973); see also United States v.
DeFusco, 949 F.2d 114, 120-21 (4th Cir. 1991). This general rule is
true unless it "conclusively appears" in the trial record that counsel
did not provide effective assistance. Fisher, 477 F.2d at 302. In this
case, there is no such obvious failure on the part of trial counsel. Con-
sequently, this claim is more properly advanced in a§ 2255 motion.

Gary also contends that his conviction was not supported by suffi-
cient evidence. "To sustain a conviction[,] the evidence, when viewed
in the light most favorable to the government, must be sufficient for
a rational trier of fact to have found the essential elements of the
crime beyond a reasonable doubt." United States v. Brewer, 1 F.3d
1430, 1437 (4th Cir. 1993); see also Glasser v. United States, 315
U.S. 60, 80 (1942). Circumstantial as well as direct evidence is con-
sidered, and the government is given the benefit of all reasonable
inferences from the facts proven to those sought to be established. See
United States v. Tresvant, 677 F.2d 1018, 1021 (4th Cir. 1982). "[A]n

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appellate court's reversal of a conviction on grounds of insufficient
evidence should be `confined to cases where the prosecution's failure
is clear.'" United States v. Jones, 735 F.2d 785, 791 (4th Cir. 1984)
(quoting Burks v. United States, 437 U.S. 1, 17 (1978)). During this
inquiry, this court neither weighs evidence nor reviews witness credi-
bility. See United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).

To support the conviction under § 846, the Government was
required to prove that there was an agreement between two or more
persons to violate the federal drug laws, that the defendant knew of
it, and that he voluntarily joined it. See United States v. Burgos, 94
F.3d 849, 857 (4th Cir. 1996) (in banc), cert. denied, 65 U.S.L.W.
3586 (U.S. Feb. 24, 1997) (No. 96-6868). Here, the existence of the
agreement to violate drug laws is clear. In his testimony, Morrilo-
Perez described his arrangement to travel from North Carolina to New
York and back in order to transport packages of crack cocaine to
Anthony Carson and someone named Kevin. To show that Gary was
aware of and joined the agreement, Morrilo-Perez testified that Gary
on four occasions rented vehicles for Morrillo-Perez to use on his
excursions to New York. In return for renting the vehicles, Gary
received either crack cocaine or money. According to Morrilo-Perez's
testimony, Gary sometimes sold the drugs he received in payment for
renting the vehicle. Further, the arresting officer testified that Gary
told him he rented cars for Morrilo-Perez and was aware that Morrilo-
Perez was transporting crack cocaine. There is no suggestion in the
record that Gary's actions were anything other than voluntary. With-
out reweighing Morrilo-Perez's credibility, as Gary urges us to do,
see Saunders, 886 F.2d at 60, we cannot find that there has been a
clear failure of evidence on the part of the Government. The jury
could, and in fact did, find that Gary was aware of the agreement to
violate the federal drug laws and joined voluntarily. There is no merit
to Gary's contention that his conviction is not supported by sufficient
evidence.

We decline to review Gary's final claim. Gary contends that in
closing arguments, the prosecutor impermissibly suggested to the jury
that Gary's election not to testify on his own behalf implied Gary's
guilt. See 18 U.S.C. § 3481 (1994); Griffin v. California, 380 U.S.
609, 611-12 (1965). The trial transcript does not reflect any comments
of that nature. In fact, Gary's appellate brief concedes that the com-

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ments are not a part of the record on appeal. See Fed. R. App. P.
10(a). Gary may not raise a claim on direct appeal premised on
alleged prosecutorial error, the evidence of which is not a part of the
record. See United States v. Russell, 971 F.2d 1098, 1112 (4th Cir.
1992).

Finding no merit to any of Gary's contentions, we affirm the con-
viction. Although we have received and reviewed Gary's pro se sup-
plemental brief and pro se supplemental reply brief, we deny leave to
file the briefs because they are largely redundant of the same merit-
less issues advanced by counsel, albeit advanced in greater detail. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.

AFFIRMED

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