           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          December 3, 2009
                                     No. 09-10017
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee

v.

KEVIN KENO DAVIS,

                                                   Defendant-Appellant


                    Appeal from the United States District Court
                         for the Northern District of Texas
                              USDC No. 4:08-CR-119-6


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kevin Keno Davis appeals his 188-month sentence imposed following his
guilty plea conviction for conspiracy to possess with intent to distribute more
than 50 kilograms of marijuana. Davis argues that the district court clearly
erred in determining the amount of drugs attributed to him for sentencing
purposes. He contends that the district court relied on evidence that was not
sufficiently reliable and that its factual determination was not plausible in light
of the record as a whole.

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                  No. 09-10017

      The district court’s determination of drug quantity is a factual finding
reviewable for clear error, meaning the finding must be plausible in light of the
record as a whole. United States v. Betancourt, 422 F.3d 240, 246 (5th Cir.
2005). A district court may determine drug amounts for sentencing purposes
provided the finding is based on reliable evidence, such as the presentence report
(PSR) and information provided by codefendants and other witnesses.            See
United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998); United States v.
Gaytan, 74 F.3d 545, 558 (5th Cir. 1996). The defendant bears the burden of
presenting rebuttal evidence to demonstrate that the information relied upon by
the district court is inaccurate or materially untrue.      See United States v.
Washington, 480 F.3d 309, 320 (5th Cir. 2007).
      Based on the evidence presented at the sentencing hearing and the
information in the presentence report (PSR) relied on by the district court, there
was sufficient reliable evidence to support the district court’s determination that
Davis was involved with at least 1270 kilograms (100 pounds per month for 28
months) of marijuana during the course of the conspiracy.            The hearing
testimony of Jesus Silva and Chunyi Zhang was inconsistent with each others
with respect to the amount of marijuana supplied by Davis and with respect to
their earlier representations to law enforcement authorities. Their testimony
was also disputed by the testimony of Special Agent George Lizarraga and an
unindicted coconspirator and by the information in the PSR that was adopted by
the district court. Further, the district court rejected as incredible Davis’s
assertion that he supplied only 270 kilograms of marijuana, which finding is
entitled to deference. See United States v. Sotelo, 97 F.3d 782, 799 (5th Cir.
1996).
      Davis has not provided rebuttal evidence showing that the testimony of
coconspirator Charles Jennings and Agent Lizarraga, or the findings in the PSR
adopted by the district court were inaccurate or materially untrue. Washington,
480 F.3d at 320. The district court’s determination that Davis supplied at least

                                        2
                                   No. 09-10017

1270 kilograms of marijuana during the 28-month conspiracy was plausible in
light of the record on the whole. Thus, the district court did not clearly err in
making that determination.
      Davis has filed several motions seeking reconsideration of his motion for
appointment of counsel. He asserts that he has a conflict of interest with his
appointed counsel because counsel will not argue a claim of ineffective assistance
of counsel on direct appeal.
      This “court may, in the interests of justice, substitute one appointed
counsel for another at any stage of the proceedings.” 18 U.S.C. § 3006A(c).
Counsel previously appointed may be relieved upon a showing “that there is a
conflict of interest or other most pressing circumstances or that the interests of
justice otherwise require relief of counsel.”       Fifth Circuit Plan under the
Criminal Justice Act, 5(B). The court has already determined that Davis has not
made this showing.
      Further, the “general rule in this circuit is that a claim of ineffective
assistance of counsel cannot be resolved on direct appeal when the claim has not
been raised before the district court since no opportunity existed to develop the
record on the merits of the allegations.” United States v. Gulley, 526 F.3d 809,
821 (5th Cir.), cert. denied, 129 S. Ct. 159 (2008). Davis did not make or develop
this claim of ineffective assistance at the time of his trial. Thus, counsel’s failure
to raise a claim of ineffective assistance of counsel on direct appeal did not create
a conflict of interest because Davis’s legal position was not prejudiced by
counsel’s failure to do so. Davis’s motions for reconsideration of the denial of his
motion for appointment of counsel are denied.
      AFFIRMED; MOTIONS DENIED.




                                          3
