                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 09-4394


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PETER JAMES SMITH,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., Chief District Judge. (3:08-cr-00074-RJC-DSC-1)


Submitted:   July 22, 2010                 Decided:    July 29, 2010


Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Carol Ann Bauer, Morgantown, North Carolina, for Appellant.
Anne M. Tompkins, United States Attorney, Charlotte, North
Carolina; Amy E. Ray, Assistant United States Attorney,
Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Peter       James    Smith    was       convicted         by    a     jury    of    two

counts of carjacking, in violation of 18 U.S.C. § 2119 (2006);

two counts of kidnapping, in violation of 18 U.S.C.A. § 1201

(2006 & West Supp. 2010); two counts of use of a firearm in

furtherance of a crime of violence, in violation of 18 U.S.C.

§ 924(c)     (2006);       and    possession         of     a    firearm         after     having

previously       been    convicted       of    a    crime       punishable          by    a    term

exceeding     one       year,    in    violation          of    18     U.S.C.      § 922(g)(1)

(2006).     The district court sentenced Smith to a total of 708

months of imprisonment and Smith now appeals.                           Finding no error,

we affirm.

            On      appeal,      Smith        argues       that      his        trial    counsel

rendered     ineffective         assistance         for    failing          to    move     for    a

judgment    of    acquittal       at   the     close       of    the    evidence.             Under

Strickland v. Washington, 466 U.S. 668, 687 (1984), to prove a

claim of ineffective assistance of counsel a defendant must show

(1) “that counsel’s performance was deficient,” and (2) “that

the deficient performance prejudiced the defense.”                                With respect

to   the   first     prong,      the   defendant          must       show    that       counsel’s

performance         “fell        below         an         objective              standard        of

reasonableness.”          Id. at 688.         In addition, “[j]udicial scrutiny

of counsel’s performance must be highly deferential.”                                     Id. at

689.   Under the second prong of the test, “[t]he defendant must

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show    that    there    is   a       reasonable      probability        that,       but    for

counsel’s unprofessional errors, the result of the proceeding

would have been different.”                Id. at 694.         Moreover, this court

may address a claim of ineffective assistance on direct appeal

only if the lawyer’s ineffectiveness conclusively appears from

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

Cir. 2006).

               Smith    argues     that,       had    his    counsel       moved      for     a

judgment of acquittal, his claim regarding the sufficiency of

the evidence would have been preserved for appellate review.

Smith’s argument regarding the sufficiency of the evidence is,

however, based on the conflicts between Smith’s testimony and

the testimonies of the victims at trial.                       “[D]eterminations of

credibility are within the sole province of the jury and are not

susceptible to judicial review.”                     United States v. Burgos, 94

F.3d    849,    863    (4th   Cir.     1996)       (internal   quotation         marks      and

citations      omitted).         We    conclude,       therefore,        that    Smith      has

failed    to    demonstrate       that    ineffective        assistance         of   counsel

conclusively      appears       from     the       record.     We   thus        decline      to

address this claim on direct appeal.

               Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions      are     adequately         presented      in    the    materials



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before the court and argument would not aid in the decisional

process.

                                                     AFFIRMED




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