United States v. Schwenke , 363 F. App'x 259 ( 2010 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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