UNPUBLISHED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-cv00100-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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.
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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