                              UNPUBLISHED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.



On Remand from the United States Supreme Court.    (S. Ct. No. 11-
10599)


Submitted:   February 26, 2013              Decided:   March 4, 2013


Before WILKINSON and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Lauren E. Case, OFFICE OF
THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Michael C. Hanlon,
Assistant United States Attorney, Baltimore, 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Unpublished opinions are not binding precedent in this circuit.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    argued    that       (1)    the

district court erred under the Confrontation Clause of the Sixth

Amendment admitting the testimony of a DNA expert without also

requiring the testimony of those persons involved in conducting

the 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.         After    placing         this

appeal in abeyance for United States v. Summers, 666 F.3d 192

(4th Cir. 2011), cert. denied, 133 S. Ct. 181 (2012), this Court

affirmed.      See United States v. Shanton, No. 09-4617, 2012 WL

165029 (4th Cir. Jan. 20, 2012) (unpublished).                        On October 1,

2012, the Supreme Court granted Shanton’s petition for a writ of

certiorari,        vacated    the    judgment       and    remanded     for      further

consideration in light of Williams v. Illinois, 132 S. Ct. 2221

(2012).       In   Williams,       the   Supreme    Court    addressed       a   similar

Confrontation        Clause    issue       and    affirmed    the     lower      court’s

judgment.     After considering Williams, we affirm. *




      *
       Shanton’s sentencing issue, which is independent of his
Confrontation Clause issue, will not be discussed.



                                            2
            In Williams, an expert witness from the Illinois State

Police Laboratory testified at a bench trial regarding a DNA

match    that     incriminated      the        defendant.          The   Illinois      State

Police sent Cellmark, an independent laboratory, a vaginal swab

and     directed       Cellmark    to     conduct       DNA       analysis.      Cellmark

returned    the     vaginal       swab    and      a   report      containing    the    DNA

analysis.        The expert witness testified that the DNA profile

obtained     by    Cellmark        from        the     vaginal      swab     matched    the

defendant’s DNA profile, which was obtained from the state’s

forensic database.          The expert witness did not have any first

hand knowledge of how Cellmark handled the vaginal swab, what

tests were actually run on the swab or the manner in which the

tests were conducted.              However, she was permitted to testify

that the DNA taken from the vaginal swab matched to a reasonable

degree of medical certainty the defendant’s DNA.

            Justice Alito authored the plurality opinion joined by

three other justices.              In the plurality opinion it was found

that there was no Confrontation Clause violation because the

statements from the Cellmark report were not being used for the

truth of the matter asserted.                  The plurality concluded that the

statements from the Cellmark report were used as a premise from

which      the         expert      was         able          to     arrive      at      her

opinion.         See    Williams,        132    S.     Ct.    at    2233-37    (plurality

opinion).

                                               3
             Justice Thomas authored an opinion concurring in the

judgment.         He    concluded         that    there         was    no    violation      of   the

Confrontation          Clause    because         the       statements         at   issue,    while

being admitted for the truth of the matter asserted, lacked the

formality         and         solemnity           associated                with     testimonial

evidence.         See    Williams,          132       S.    Ct.       at    2255   (Thomas,      J.,

concurring in the judgment).                      The dissent, authored by Justice

Kagan and joined by the remaining three justices, found that the

statements were offered for the truth of the matter and did

violate the Confrontation Clause.                          See Williams, 132 S. Ct. at

2265 (Kagan, J., dissenting).

             We have considered Williams in conjunction with our

decision     in    Summers,         and    conclude         that       the    district     court’s

judgment should still be affirmed.                              If this case were to go

before the Supreme Court again, we believe five justices would

affirm:      Justice Thomas on the ground that the statements at

issue were not testimonial and Justice Alito, along with the

three justices who joined his plurality opinion, on the ground

that   the    statements        were       not    admitted         for       the   truth    of   the

matter asserted.

             After Williams, Summers still has precedential value

in   this    court      and    in    that    case          we   affirmed       a   Confrontation

Clause issue that rose from a similar factual scenario.                                          In

fact, Summers presented a slightly more riskier scenario because

                                                  4
the expert witness submitted a written report, seen by the jury,

that contained some of the non-testifying analysts’ raw data.

In   this   case,     the   Government       did   not   introduce     the    expert

witness’ report into evidence, nor was there any testimony on

direct examination regarding the actual raw data the expert used

to reach her opinion.

            Accordingly, we affirm the convictions and sentence.

We   dispense   with    oral   argument       because    the   facts    and   legal

contentions     are   adequately   presented        in   the   materials      before

this court and argument would not aid the decisional process.



                                                                         AFFIRMED




                                         5
