UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-7703
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID DONNELL MARTIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Richard L.
Voorhees, District Judge. (5:06-cr-00037-RLV-DCK-13; 5:09-cv-
00100-RLV)
Submitted: July 28, 2010 Decided: April 13, 2011
Before KING and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Joseph R. Conte, LAW OFFICES OF J.R. CONTE, Washington, D.C.,
for Appellant. Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Donnell Martin appeals his convictions and
sentence for conspiracy to possess with intent to distribute
cocaine, crack cocaine, and methamphetamine, in violation of 21
U.S.C. § 846 (2006), and possession of a firearm in relation to
a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)
(2006). Martin’s appellate counsel filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there
are no meritorious issues for appeal, but questioning whether
Martin’s trial counsel was ineffective “with regard to his plea
and sentencing.” Counsel also filed a motion for leave to
withdraw. Martin filed a supplemental pro se brief. The
Government declined to file a brief. Finding no reversible
error, we affirm.
In his brief, appellate counsel states that, although
Martin may believe trial counsel was ineffective, “[a]fter
conscientious examination of the entire record below undersigned
counsel has determined that there are no ineffective assistance
of counsel claims available to Appellant.” As appellate counsel
correctly notes, Martin never expressed any dissatisfaction with
trial counsel during any of the proceedings, stated at the plea
hearing that he was satisfied with counsel, and when given the
opportunity at sentencing again indicated that he was satisfied
with trial counsel’s performance.
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In his pro se supplemental brief, Martin argues that
trial counsel was ineffective for allowing him to plead guilty
to the firearm charge, where the evidence was insufficient to
establish a violation of 18 U.S.C. § 924(c), and also that he
was improperly sentenced to a consecutive sixty month sentence
on the § 924(c) charge. First, Martin argues “the record shows
that neither the district court, the [G]overnment, nor Mr.
Martin’s counsel ever set forth a factual basis sufficient to
support a finding of guilt.” However, Martin stipulated in the
plea agreement that a factual basis existed for the plea.
The plea agreement also provided that the factual
basis as required by Fed. R. Crim. P. 11(b)(3) would be deferred
until sentencing, and the district court could consider the
offense conduct as presented by the presentence report (“PSR”),
except those facts objected to by Martin. The PSR, to which
Martin lodged no objections regarding the relevant § 924(c)
conduct, states that when the police searched Martin’s
residence, they discovered approximately twenty-five ounces of
cocaine in his bedroom, and a firearm “in close proximity to
Ecstasy tablets, marijuana, and drug paraphernalia” on a coffee
table. The firearm was thus found in Martin’s home, located
close to and possessed contemporaneously with other drugs and
the cocaine for which he was convicted, and was readily
available for use. On these facts, it does not appear that
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Martin’s trial counsel acted unreasonably in allowing Martin to
plead guilty to the § 924(c) charge. Accordingly, because the
record does not conclusively demonstrate that counsel was
ineffective, we hold that Martin’s claim is not properly before
this court on direct appeal. See United States v. Benton, 523
F.3d 424, 435 (4th Cir. 2008).
Next, Martin asserts that the district court erred in
determining that he was subject to a five-year mandatory minimum
consecutive sentence on the § 924 charge, because he was already
subject to a ten-year mandatory minimum sentence on the drug
charge. Martin concedes that this claim is foreclosed by this
court’s decision in United States v. Studifin, 240 F.3d 415 (4th
Cir. 2001). Because a panel of this court cannot ordinarily
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.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore deny counsel’s motion to withdraw and
affirm the district court’s judgment. This court requires that
counsel inform Martin, in writing, of his right to petition the
Supreme Court of the United States for further review. If
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Martin requests that a petition be filed, but counsel believes
that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation.
Counsel’s motion must state that a copy thereof was served on
Martin. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
AFFIRMED
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