UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4242

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MICHAEL JAY BRACKETT,

Defendant – Appellant.

Appeal from the United States District Court for the Northern 

District of West Virginia, at Martinsburg. John Preston Bailey, 

Chief District Judge. (3:08-cr-00056-JPB-DJJ-2)

Submitted: March 10, 2010 Decided: April 12, 2010

Before GREGORY, SHEDD, and DUNCAN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Byron Craig Manford, Martinsburg, West Virginia, for Appellant. 

Sharon L. Potter, United States Attorney, Erin K. Reisenweber, 

Assistant United States Attorney, Martinsburg, West Virginia, 

for Appellee. 

Unpublished opinions are not binding precedent in this circuit.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

Michael Jay Brackett appeals his convictions and 210 

month sentence following a jury trial on one count of conspiring 

to possess with intent to sell stolen firearms, in violation of 

18 U.S.C. § 922(j) (2006) (“Count One”), and one count of being 

a felon in possession of a firearm and ammunition, in violation 

of §§ 922(g)(1) & 924 (2006) (“Count Six”). We affirm. 

Brackett’s first argument on appeal is that the 

district court erred in denying his Fed. R. Crim. P. 29 motion 

for judgment of acquittal and his motion for a new trial 

because, according to Brackett, the evidence was insufficient to 

sustain his convictions. This court reviews the denial of a 

Rule 29 motion de novo, United States v. Alerre, 430 F.3d 681, 

693 (4th Cir. 2005), and reviews the denial of a Rule 33 motion 

for new trial for abuse of discretion. United States v. 

Fulcher, 250 F.3d 244, 249 (4th Cir. 2001). To determine if 

there was sufficient evidence to support a conviction, this 

court considers whether, taking the evidence in the light most 

favorable to the Government, substantial evidence supports the 

jury’s verdict. Glasser v. United States, 315 U.S. 60, 80 

(1942). 

We have reviewed the materials on appeal and determine 

that the evidence presented, viewed in the light most favorable 

to the Government, was more than sufficient to sustain 
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Brackett’s convictions on Count One and Six. Therefore, 

Brackett’s first claim is without merit. 

Next, Brackett argues that the district court erred by

not, sua sponte, giving a limiting instruction regarding his 

prior felony convictions. Brackett failed to object in the 

district court to the court’s failure to give a limiting 

instruction. Accordingly, his claim is reviewed for plain 

error. See United States v. Olano, 507 U.S. 725, 732 (1993)

(providing standard). 

Assuming without deciding that the district court was 

required to sua sponte give a limiting instruction, but see

United States v. Echeverri-Jaramillo, 777 F.2d 933, 937 

(4th Cir. 1985), the alleged error had no effect on Brackett’s 

substantial rights given the abundant evidence against him. 

Moreover, the district court did instruct the jury that “[t]he 

defendant is not on trial for any facts--or any acts or crimes 

not alleged in the indictment,” and the parties stipulated to 

the fact that Brackett had previously been convicted of a 

felony. No evidence of the prior offense conduct was presented 

to the jury. Accordingly, this claim fails. 

Brackett also argues that a portion of the district 

court’s general jury charge shifted the burden of proof from the 

United States to him. The district court instructed the jury 

that 
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[c]ommon sense is no substitute for evidence, [y]ou 

are permitted to use your common sense in evaluating 

all the evidence, including the circumstantial 

evidence, which the Government has presented to you in 

an attempt to prove beyond a reasonable doubt the 

guilt of Michael Jay Brackett.

According to Brackett, the last clause of that charge should 

have read “which the Government has presented to you in an 

attempt to prove beyond a reasonable doubt the guilt or 

innocence of Michael Jay Brackett.” 

The Government was not required to prove Brackett’s 

innocence beyond a reasonable doubt, only his guilt. The 

district court properly instructed the jury that the burden of 

proof never shifted from the Government to Brackett and that 

Brackett was innocent unless and until the Government proved his 

guilt beyond a reasonable doubt. Accordingly, Brackett’s 

challenge to the jury instruction fails. 

Brackett also contends that the district court erred

by finding that he obstructed or attempted to obstruct justice 

and enhancing his advisory guidelines range two levels pursuant

to USSG § 3C1.1. A district court’s factual findings, including 

those that serve as a basis for a § 3C1.1 obstruction of justice 

enhancement, are reviewed for clear error. United States v. 

Kiulin

At Brackett’s sentencing hearing, Brackett’s 

co-defendant, Crum, testified that he wrote a letter recanting 

, 360 F.3d 456, 460 (4th Cir. 2004). 
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his earlier statement to law enforcement because he believed 

Brackett would harm him if he did not. The co-defendant was 

familiar with Brackett’s violent past and had received 

information that Brackett had made a threat against Crum’s 

mother’s life. The district court found this testimony 

credible, a finding we do not reassess on appeal. See United 

States v. Saunders

Next, although Brackett concedes that his sentence was 

within the statutory maximum and within the advisory guideline 

range, he asserts that he was sentenced in violation of 

, 886 F.2d 56, 60 (4th Cir. 1989). Based on 

the evidence presented, the district court did not clearly err 

in applying the § 3C1.1 enhancement. 

Apprendi v. New Jersey, 530 U.S. 466 (2000). Specifically, 

Brackett challenges the sentencing court’s finding that he had a 

penchant for violence after hearing about Brackett’s alleged 

threats against Crum and Crum’s mother and about Brackett’s 

alleged violence toward others. To the extent Brackett claims 

his sentence was enhanced based on his prior criminal history, 

Apprendi specifically excepted prior criminal history from the 

facts that must be submitted to a jury. Apprendi, 530 U.S. at 

490. Also, to the extent that Brackett alleges the district 

court based his sentence on uncharged prior bad acts that were 

not admitted to or found beyond a reasonable doubt, his claim 

fails because, following United States v. Booker, 543 U.S. 220 
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(2005), a sentencing court continues to make decisions about 

sentencing factors by a preponderance of the evidence. United 

States v. Morris, 429 F.3d 65, 72 (4th Cir. 2005). Accordingly, 

Brackett’s Apprendi

Brackett next asserts that his counsel rendered 

ineffective assistance by failing to request a limiting 

instruction, failing to object at various points in the 

Government’s case in chief, and failing to provide clarification 

through cross-examination. Claims of ineffective assistance of 

counsel are not cognizable on direct appeal unless the record 

conclusively establishes that counsel provided ineffective 

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

Cir. 2006). We have reviewed the materials submitted on appeal 

and find that the record does not conclusively establish that 

counsel provided ineffective assistance. Accordingly, we 

decline to address this issue on direct appeal. 

claim fails. 

Finally, Brackett claims that the cumulative weight of 

all errors at trial warrants a new trial. Brackett has not 

demonstrated that multiple errors occurred; therefore, the 

cumulative error doctrine does not apply. See United States v. 

Martinez, 277 F.3d 517, 532 (4th Cir. 2002). 

For these reasons, we affirm Brackett’s convictions 

and sentence. We dispense with oral argument as the facts and 

legal contentions are adequately presented in the materials 
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before the court and argument would not aid the decisional 

process. 

AFFIRMED