United States v. David Shanton, Sr. ( 2012 )

Certiorari granted, October 1, 2012
Vacated by Supreme Court, October 1, 2012
UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 of two counts of armed bank robbery and related
firearm offenses. On appeal, Shanton argues that (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 argues that because Luttman was relying upon data
generated by members of her staff, and that the data was
testimonial, it was incumbent upon the Government to present as
witnesses those persons who conducted the tests, citing
Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (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 held that the raw data
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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 two 18 U.S.C. § 924(c) convictions, claiming that
another conviction provided for a greater mandatory minimum
sentence. This argument is foreclosed by the Supreme Court’s
holding in Abbott v. United States, 131 S. Ct. 18 (2010). The
Court held “that a defendant is subject to a mandatory,
consecutive sentence for a § 924(c) conviction, and is not
spared from that sentence by virtue of receiving a higher
mandatory minimum on a different count of conviction.” Id., 131
S. Ct. at 23. The Court held that the statute’s “except” clause
refers to conduct proscribed by § 924(c): possession of a
firearm in connection with a predicate crime. Id., 131 S. Ct.
at 26.
Accordingly, we affirm the convictions and sentence.
We dispense with oral argument because the facts and legal
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contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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