                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-4660


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

MACK BROOKS,

                Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Parkersburg. Thomas E. Johnston,
District Judge. (6:12-cr-00059-2)


Submitted:   March 25, 2015                       Decided:   April 2, 2015


Before AGEE and    FLOYD,     Circuit   Judges,    and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Stephen D. Herndon, Wheeling, West Virginia, for Appellant. R.
Booth Goodwin II, United States Attorney, John J. Frail,
Assistant United States Attorney, Charleston, West Virginia, for
Appellee.


Unpublished opinions are not binding precedent in this circuit.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

      Following     a   jury     trial,    Mack          Brooks     was    convicted      of

conspiracy to distribute oxycodone and oxymorphone, in violation

of 21 U.S.C. § 846 (2012).            The district court sentenced him to

240 months of imprisonment.                Brooks appeals, challenging the

drug quantity attributable to him for sentencing purposes and

the district court’s denial of his pro se motion for a judgment

of acquittal or a new trial.           Finding no error, we affirm.

      Brooks’ primary claim on appeal is that the district court

erred in determining the drug quantity attributable to him for

sentencing      purposes.        Although       Brooks       acknowledges        that     we

already upheld the probation officer’s calculations in his co-

defendant’s case, United States v. Dawkins, 584 F. App’x 124

(4th Cir. 2014) (No. 14-4021), cert. denied, 135 S. Ct. 1014

(2015), he claims that the district court erred in basing his

relevant    conduct     “upon      information        derived       from    active      drug

users    and   addicts,”     primarily         the    trial       testimony      of    Jason

McClure     whose   “story       changed       in    a     manner     to    improve      the

testimony      supporting    the    conspiracy           charge     and    in   ways    that

tended to increase the relevant conduct.”                     (Petitioner’s Br. at

9-10).

      Under the Sentencing Guidelines, a defendant convicted of

conspiring to distribute controlled substances “is accountable

for   all   quantities      of   contraband         with    which    he    was   directly

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involved    and,     in   the    case    of       a    jointly        undertaken    criminal

activity,    all    reasonably         foreseeable          quantities      of   contraband

that were within the scope of the criminal activity that he

jointly undertook.”             U.S. Sentencing Guidelines Manual § 1B1.3

cmt. n.2 (2012).           The government must prove the drug quantity

attributable       to     the    defendant            by   a     preponderance       of     the

evidence.        United States v. Carter, 300 F.3d 415, 425 (4th Cir.

2002).      The    district      court     may        rely       on   information    in     the

presentence report unless the defendant affirmatively shows that

the information is inaccurate or unreliable.                             Id.     A district

court’s    findings       on    drug    quantity           are    generally      factual     in

nature,    and     therefore     are     reviewed          by     this   court     for    clear

error.     Id.    To reverse, we must be “‘left with the definite and

firm conviction that a mistake has been committed.’”                                     United

States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting

Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)).

     Based on our review of the record, we find no clear error

in the district court’s conclusion that the probation officer

arrived at a reasonable and conservative estimate of relevant

conduct based on McClure’s testimony.                           Although Brooks attacks

McClure’s credibility as a “drug user and addict,” the district

court aptly noted that, in returning a guilty verdict, the jury

clearly found McClure credible.                    See United States v. Beidler,

110 F.3d 1064, 1067 (4th Cir. 1997) (providing that credibility

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determinations         are    for     the     trier        of    fact,       not    the    reviewing

court).

      Brooks also argues that counsel was ineffective for failing

to support his pro se motion for a new trial or judgment of

acquittal.        To the extent that Brooks challenges the district

court’s denial of his motion as untimely under either Fed. R.

Crim. P. 29 or 33, we find no abuse of discretion.                                         Although

Brooks suggests that the district court should have construed

his   motion     as    a     request       for    substitution           of       counsel,    Brooks

clearly requested a new trial or a judgment of acquittal in his

motion     and        did     not     allege           any       concerns          about     counsel

representing him at sentencing.                        Thus, there was no basis for

the   district        court    to     construe         his      motion       as    a   request     for

substitution of counsel.

      To the extent Brooks is seeking to raise an ineffective

assistance       of    counsel        claim       as       opposed      to        challenging      the

district       court’s       denial      of      his       motion      for    a     new    trial    or

judgment    of    acquittal,          we    conclude            that   the     record      does    not

conclusively establish ineffective assistance and thus his claim

should    be    raised,       if    at     all,       in    a    28    U.S.C.       § 2255    (2012)

motion.         Unless        an    attorney’s             ineffectiveness             conclusively

appears on the face of the record, ineffective assistance claims

are not generally addressed on direct appeal.                                 United States v.

Benton, 523 F.3d 424, 435 (4th Cir. 2008).                              Instead, such claims

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should   be   raised   in    a        § 2255   motion    in      order    to    permit

sufficient    development        of     the    record.        United     States     v.

Baptiste, 596 F.3d 214, 216 n.1 (4th Cir. 2010).

     Accordingly, we affirm the criminal judgment.                       We dispense

with oral argument because the facts and legal contentions are

adequately    expressed     in   the     materials      before    this    court    and

argument would not aid the decisional process.


                                                                               AFFIRMED




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