                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-7703


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DAVID DONNELL MARTIN,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.        Richard L.
Voorhees, District Judge.  (5:06-cr-00037-RLV-DCK-13; 5:09-cv-
00100-RLV)


Submitted:   July 28, 2010                   Decided:    April 13, 2011


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


Affirmed by unpublished per curiam opinion.


Joseph R. Conte, LAW OFFICES OF J.R. CONTE, Washington, D.C.,
for Appellant.     Amy Elizabeth Ray, Assistant United States
Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            David    Donnell       Martin          appeals       his   convictions         and

sentence for conspiracy to possess with intent to distribute

cocaine, crack cocaine, and methamphetamine, in violation of 21

U.S.C. § 846 (2006), and possession of a firearm in relation to

a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)

(2006).     Martin’s appellate counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that there

are no meritorious issues for appeal, but questioning whether

Martin’s trial counsel was ineffective “with regard to his plea

and   sentencing.”         Counsel       also      filed    a    motion     for    leave    to

withdraw.       Martin     filed     a    supplemental           pro   se    brief.        The

Government      declined    to   file     a       brief.        Finding     no    reversible

error, we affirm.

            In his brief, appellate counsel states that, although

Martin    may    believe    trial        counsel      was       ineffective,       “[a]fter

conscientious examination of the entire record below undersigned

counsel has determined that there are no ineffective assistance

of counsel claims available to Appellant.”                        As appellate counsel

correctly notes, Martin never expressed any dissatisfaction with

trial counsel during any of the proceedings, stated at the plea

hearing that he was satisfied with counsel, and when given the

opportunity at sentencing again indicated that he was satisfied

with trial counsel’s performance.

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            In his pro se supplemental brief, Martin argues that

trial counsel was ineffective for allowing him to plead guilty

to the firearm charge, where the evidence was insufficient to

establish a violation of 18 U.S.C. § 924(c), and also that he

was improperly sentenced to a consecutive sixty month sentence

on the § 924(c) charge.           First, Martin argues “the record shows

that    neither    the    district      court,     the   [G]overnment,       nor    Mr.

Martin’s counsel ever set forth a factual basis sufficient to

support a finding of guilt.”              However, Martin stipulated in the

plea agreement that a factual basis existed for the plea.

            The    plea    agreement      also     provided     that   the       factual

basis as required by Fed. R. Crim. P. 11(b)(3) would be deferred

until    sentencing,      and    the    district    court      could   consider      the

offense conduct as presented by the presentence report (“PSR”),

except those facts objected to by Martin.                       The PSR, to which

Martin    lodged    no    objections      regarding      the    relevant     §    924(c)

conduct,     states       that    when     the     police      searched      Martin’s

residence, they discovered approximately twenty-five ounces of

cocaine in his bedroom, and a firearm “in close proximity to

Ecstasy tablets, marijuana, and drug paraphernalia” on a coffee

table.     The firearm was thus found in Martin’s home, located

close to and possessed contemporaneously with other drugs and

the     cocaine    for    which    he    was     convicted,      and   was       readily

available for use.           On these facts, it does not appear that

                                           3
Martin’s trial counsel acted unreasonably in allowing Martin to

plead guilty to the § 924(c) charge.                   Accordingly, because the

record     does    not   conclusively          demonstrate     that     counsel      was

ineffective, we hold that Martin’s claim is not properly before

this court on direct appeal.             See United States v. Benton, 523

F.3d 424, 435 (4th Cir. 2008).

            Next, Martin asserts that the district court erred in

determining that he was subject to a five-year mandatory minimum

consecutive sentence on the § 924 charge, because he was already

subject to a ten-year mandatory minimum sentence on the drug

charge.     Martin concedes that this claim is foreclosed by this

court’s decision in United States v. Studifin, 240 F.3d 415 (4th

Cir. 2001).        Because a panel of this court cannot ordinarily

overrule    the    precedent    set   by       a   prior    panel,    Scotts   Co.    v.

United Indus. Corp., 315 F.3d 264, 271 n.2 (4th Cir. 2002), and

because    the    statutory    interpretation         adopted    in    Studifin      was

recently confirmed by Abbott v. United States, 562 U.S. ___, 131

S. Ct. 18 (2010), we conclude that this claim is without merit.

            In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We    therefore   deny     counsel’s      motion    to    withdraw      and

affirm the district court’s judgment.                  This court requires that

counsel inform Martin, in writing, of his right to petition the

Supreme    Court    of   the   United    States       for    further    review.       If

                                           4
Martin requests that a petition be filed, but counsel believes

that such a petition would be frivolous, then counsel may move

in   this   court   for       leave   to       withdraw      from    representation.

Counsel’s motion must state that a copy thereof was served on

Martin.     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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