UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 09-4631

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee, 

 v. 

PATRICK SCHWENKE, 

 Defendant - Appellant. 

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney, 

District Judge. (3:07-cr-00079-FDW-1) 

Submitted: January 19, 2010 Decided: January 26, 2010 

Before NIEMEYER, KING, and DAVIS, Circuit Judges. 

Affirmed by unpublished per curiam opinion. 

Patrick Schwenke, Appellant Pro Se. 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Unpublished opinions are not binding precedent in this circuit.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: 

 Patrick Schwenke pled guilty to conspiracy to possess 

marijuana with intent to distribute, 21 U.S.C. § 846 (2006) 

(Count One), and using and carrying a firearm during and in 

relation to a drug trafficking crime or possession of a firearm 

in furtherance of such a crime, 18 U.S.C. § 924(c) (2006) (Count 

Four). Upon the government’s motion for a substantial 

assistance departure, U.S. Sentencing Guidelines Manual § 5K1.1, 

p.s. (2008), Schwenke was sentenced to eighteen months 

imprisonment for the conspiracy followed by a consecutive fiveyear term for the § 924(c) count. Proceeding pro se, Schwenke 

appeals his conviction of the firearm offense.* We affirm. 

 Schwenke was arrested at a warehouse he leased, which 

contained evidence of his involvement in marijuana trafficking, 

and where over 2000 pounds of marijuana had just been delivered. 

From Schwenke’s residence, authorities seized $83,000 in cash, 

two ounces of marijuana, and a shotgun. Schwenke’s plea 

agreement stipulated that a factual basis existed for his guilty 

plea and that the district court could use any uncontested facts 

 

*

 Under the terms of his plea agreement, Schwenke waived his 

right to appeal his conviction. Because the government does not 

seek to enforce the waiver, we need not address it. United 

States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005). 
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in the presentence report to establish the factual basis. 

Schwenke consented to a plea hearing before a magistrate judge, 

who conducted a Fed. R. Crim. P. 11 hearing and accepted his 

plea, but deferred the factual basis until sentencing. At 

sentencing, Schwenke made no objections to the presentence 

report and expressly agreed that the facts in the presentence 

report constituted a factual basis for his guilty plea. 

 Schwenke now asserts that his guilty plea to the 

firearm offense lacked a factual basis because the shotgun 

seized from his home had not been used for a long time and that 

the district court erred in accepting his guilty plea. Because 

Schwenke did not raise this issue in the district court, we 

review the claim of Rule 11 error under the plain error 

standard. United States v. Vonn, 535 U.S. 55, 63 (2002); United 

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002). The 

district court may rely on stipulated facts to support a plea. 

United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008). 

Schwenke did not assert in the district court that he possessed 

the shotgun for any reason other than furtherance of the drug 

conspiracy. His case is thus distinguishable from United 

States v. Monzon, 429 F.3d 1268 (9th Cir. 2005), on which he 

relies. We conclude that the district court did not err in 

accepting his guilty plea. To the extent that Schwenke is 
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raising a claim of ineffective assistance of counsel, we decline 

to consider the claim because the face of the record does not 

conclusively establish that counsel provided ineffective 

representation. United States v. James, 337 F.3d 387, 391 (4th 

Cir. 2003). 

 We therefore affirm the judgment of the district 

court. 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