UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4592
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
STEPHEN F. CLARK,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:08-cr-00124-HCM-JEB-1)
Submitted: August 11, 2010 Decided: February 7, 2011
Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Larry M. Dash, Assistant Federal Public Defenders,
Norfolk, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Timothy R. Murphy, Special Assistant United
States Attorney, Newport News, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen F. Clark appeals his convictions and sentence
for possession with the intent to distribute cocaine base, in
violation of 21 U.S.C.A. § 841(a)(1), (b)(1)(B)(iii) (West 1999
& Supp. 2010) (Counts One and Three); using a firearm in
relation to a drug trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1) (2006) (Count Two); and possession of marijuana, in
violation of 21 U.S.C. § 844 (2006) (Count Four). Clark raises
two issues on appeal. First, Clark contends that the district
court abused its discretion in denying his attorney’s motion to
withdraw from representation. Second, though conceding his
argument contravenes binding circuit precedent, Clark contends
that the district court erred in determining he was subject to a
five-year mandatory minimum consecutive sentence under 18 U.S.C.
§ 924(c)(1)(A) on Count Two, as Clark was already subject to a
ten-year mandatory minimum sentence for Count One. We affirm.
Whether to allow a defendant to substitute counsel
rests in the sound discretion of the trial court. United
States v. Mullen, 32 F.3d 891, 895 (4th Cir. 1994). When
determining whether a district court abused its discretion in
disallowing the substitution of counsel, we consider three
factors: “(1) the timeliness of [the request]; (2) the adequacy
of the court’s inquiry into [Clark’s] complaint about counsel;
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and (3) whether [Clark] and his counsel experienced a total lack
of communication preventing an adequate defense.” United
States v. Reevey, 364 F.3d 151, 156 (4th Cir. 2004) (quoting
Mullen, 32 F.3d at 895) (internal quotation marks omitted).
After reviewing the record, we conclude that the district court
did not abuse its discretion in denying Clark’s attorney’s
motion to withdraw.
Next, Clark asserts that the district court erred in
determining that he was subject to a five-year mandatory minimum
consecutive sentence on Count Two, because he was already
subject to a ten-year mandatory minimum sentence on Count One.
Clark concedes that this claim is foreclosed by this court’s
holding in United States v. Studifin, 240 F.3d 415, 423 (4th
Cir. 2001). Because a panel of this court cannot overrule the
precedent set by a prior panel, Scotts Co. v. United Indus.
Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002), and because the
statutory interpretation adopted in Studifin was recently
confirmed by Abbott v. United States, 562 U.S. ___, 131 S. Ct.
18 (2010), we conclude that this claim is without merit.
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 the decisional
process.
AFFIRMED
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