UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5068
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHONTONIO L. WITHERSPOON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. Patrick Michael Duffy, Senior
District Judge. (2:08-cr-00844-PMD-1)
Submitted: September 11, 2012 Decided: September 24, 2012
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James A. Brown, Jr., LAW OFFICES OF JIM BROWN, P.A., Beaufort,
South Carolina, for Appellant. Matthew J. Modica, Assistant
United States Attorney, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shontonio L. Witherspoon appeals his conviction and
262-month sentence for possessing with intent to distribute
cocaine base and for possessing a firearm as a convicted felon.
Witherspoon’s counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states that he
could identify no meritorious issues for appeal, but questions
whether the Government’s chain of custody evidence sufficed to
support the admission of two exhibits consisting of cocaine base
that Witherspoon purportedly sold to an undercover agent.
Because Witherspoon did not object at trial to the
admission of the exhibits, his present contentions warrant only
plain error review. See United States v. Massenburg, 564 F.3d
337, 342 (4th Cir. 2009). In our view, the Government’s chain
of custody evidence was amply sufficient to make a prima facie
showing of the exhibits’ authenticity. Because such a showing
is all that is required for the exhibits’ admission into
evidence, we conclude that the district court committed no error
warranting correction. See United States v. Summers, 666 F.3d
192, 201 (4th Cir. 2011).
Witherspoon has also exercised his right to file a pro
se supplemental brief and contends that trial counsel was
ineffective for failing to file a motion to suppress the drug
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evidence on the basis that it was improperly commingled with
drug evidence pertaining to an unrelated suspect. But our
review of the record persuades us that it does not conclusively
show that Witherspoon’s trial counsel was ineffective in this
respect. See United States v. Baldovinos, 434 F.3d 233, 239
(4th Cir. 2006) (noting ineffective assistance claims may be
addressed on direct appeal “only if the lawyer’s ineffectiveness
conclusively appears from the record”). Thus, in order to allow
for the adequate development of the record, Witherspoon’s claim
should be properly brought, if at all, in a 28 U.S.C.A. § 2255
(West Supp. 2012) motion rather than on direct appeal. See
United States v. King, 119 F.3d 290, 295 (4th Cir. 1997).
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm the judgment of the district court.
This Court requires that counsel inform Witherspoon, in writing,
of the right to petition the Supreme Court of the United States
for further review. If Witherspoon 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 Witherspoon. We dispense with oral
argument because the facts and legal contentions are adequately
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presented in the materials before the Court and argument would
not aid the decisional process.
AFFIRMED
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