US v. David Shanton, Sr., No. 09-4617 (4th Cir. 2012)
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The court issued a subsequent related opinion or order on March 4, 2013.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4617 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID WILBERT SHANTON, SR., Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Catherine C. Blake, District Judge. (1:08-cr-00142-CCB-1) Submitted: January 17, 2012 Decided: January 20, 2012 Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, LaKeytria W. Felder, Assistant Federal Public Defender, Baltimore, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, George J. Hazel, Assistant United States Attorney, Greenbelt, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: After a jury trial, David Wilbert Shanton, Sr., was convicted firearm of two counts offenses. On of armed appeal, bank robbery Shanton argues and that related (1) the district court erred admitting testimony of a DNA expert without requiring the testimony of those persons involved in conducting that DNA testing, and (2) the court erred by ordering that he serve a consecutive ten year sentence for the first of his two 18 U.S.C. § 924(c) (2006) convictions. Finding no error, we affirm. At trial, Jennifer Luttman, a forensic examiner for the FBI, and an expert in the area of forensic DNA analysis, testified that, in her opinion, the results of DNA testing performed by her staff on a piece of gum found at one of the crime scenes showed the presence of DNA belonging to Shanton. Shanton generated argues by that because members of her Luttman staff, was and relying that upon the data data was testimonial, it was incumbent upon the Government to present as witnesses those Melendez-Diaz v. persons who conducted Massachusetts, 129 the S. Ct. tests, 2527 citing (2009) and Crawford v. Washington, 451 U.S. 35 (2004). In United States v. Summers, __ F.3d __, 2011 WL 6276085, *7-8 (4th Cir. 2011), this court concerned itself with a nearly identical situation. We 2 held that the raw data generated by the analysts was not testimonial and that the forensic examiner was properly permitted to give his opinion as to the meaning of the data. We conclude, therefore, that Summers controls the outcome of this issue, that Shanton s right to confrontation was not violated and that the district court did not err permitting the FBI forensic examiner to give her expert opinion. Shanton also argues that the district court erred by ordering that he serve a consecutive ten year sentence for the first of another two 18 conviction sentence. U.S.C. § 924(c) provided for convictions, a greater claiming mandatory that minimum This argument is foreclosed by the Supreme Court s holding in Abbott v. United States, 131 S. Ct. 18 (2010). Court held that consecutive spared a sentence from that defendant for a sentence is subject § 924(c) by virtue to a conviction, of mandatory, and receiving mandatory minimum on a different count of conviction. S. Ct. at 23. refers to The is a not higher Id., 131 The Court held that the statute s except clause conduct proscribed by § 924(c): firearm in connection with a predicate crime. possession of a Id., 131 S. Ct. at 26. Accordingly, we affirm the convictions and sentence. We dispense with oral argument 3 because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 4
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