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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

(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,

(2009) and

Crawford v. Washington,

(2004).

In United States v. Summers, __ F.3d __,

(4th Cir. 2011), this court concerned itself with

a nearly identical situation. We held that the raw data

2 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

(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,

(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.,

. 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.,

.

Accordingly, we affirm the convictions and sentence.

We dispense with oral argument because the facts and legal

3 contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

AFFIRMED

4