     Case: 12-60947       Document: 00512385459         Page: 1     Date Filed: 09/25/2013




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

                                                                            FILED
                                                                        September 25, 2013
                                     No. 12-60947
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

ANGELA PRESLEY,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 5:12-CR-2-1


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM:*
       Angela Presley was convicted by a jury of wire fraud in violation of
18 U.S.C. § 1343, access device fraud in violation of 18 U.S.C. § 1029(a)(2), and
aggravated identity theft in violation of 18 U.S.C. § 1028A. She was sentenced
to an aggregate prison term of 30 months to be followed by three years of
supervised release.
       Presley challenges the sufficiency of the evidence to support her
convictions. Her convictions for aggravated identity theft and wire fraud stem

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-60947

from her unauthorized submission of an online application for a credit card from
Capital One in the name of her employer, Pam Powers. Her conviction for access
device fraud stems from her use of the Capital One credit card as well as
Powers’s Chase Platinum Visa card and Powers’s Providian Visa card to pay for
personal expenses. It is undisputed that Presley had authority to use the Chase
Platinum Visa and Providian Visa cards to pay for expenses related to Powers’s
real estate brokerage.
      The sufficiency argument presented by Presley is based solely on the fact
that there was conflicting trial testimony regarding whether she was authorized
to apply for and use the Capital One credit card and whether she exceeded the
scope of her authority by using the Chase Platinum Visa and Providian Visa
credit cards for personal expenses that had not been approved by Powers.
Powers’s trial testimony was that she never gave Presley such authority. Among
other things, the fact that Presley had the statements for the Capital One and
Providian Visa credit cards mailed to her home address supports Powers’s
testimony and undercuts Presley’s claim to authority. The issue here boils down
to one of credibility. “[I]t was within the sole province of the jury as the fact
finder to decide the credibility of the witnesses and to choose among reasonable
constructions of evidence.” United States v. Zuniga, 18 F.3d 1254, 1260 (5th Cir.
1994). A rational juror viewing the trial evidence in the light most favorable to
the prosecution could have found the essential elements of each of the crimes in
this case beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979). Accordingly, Presley’s convictions will be upheld.
      Next, Presley argues that trial counsel was ineffective in that he failed to
file any pretrial motions, motions in limine, or objections to the presentence
report. She argues that he also should have moved for a mistrial based on out-
of-court communication among witnesses about their testimony. “[T]he general
rule in this circuit is that a claim for ineffective assistance of counsel cannot be
resolved on direct appeal when the claim has not been raised before the district

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                                 No. 12-60947

court since no opportunity existed to develop the record on the merits of the
allegations.” United States v. Cantwell, 470 F.3d 1087, 1091 (5th Cir. 2006)
(internal quotation marks and citation omitted). Because we conclude that “we
cannot fairly evaluate the claim[s] from the record,” we decline to consider
Presley’s ineffective assistance of counsel claims on appeal without prejudice to
her right to raise the claims in a timely 28 U.S.C. § 2255 proceeding. See United
States v. Gulley, 526 F.3d 809, 821 (5th Cir. 2008).
      AFFIRMED.




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