                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-5060



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


FRANCISCO CURBELO, a/k/a Murando,

                                            Defendant - Appellant.


                            No. 06-4116



UNITED STATES OF AMERICA,

                                             Plaintiff - Appellee,

          versus


FRANCISCO CURBELO, a/k/a Murando,

                                            Defendant - Appellant.


Appeals from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen, Senior
District Judge. (3:99-cr-00109-1)


Submitted: May 30, 2007                       Decided:   July 9, 2007


Before MOTZ and KING, Circuit Judges, and WILKINS, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.


Ronald E. Justice, Jr., THE JUSTICE LAW FIRM, P.A., Hendersonville,
North Carolina, for Appellant. Karen S. Marston, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                              - 2 -
PER CURIAM:

            A jury convicted Francisco Curbelo of conspiracy to

possess with intent to distribute more than five kilograms of

cocaine and more than fifty grams of crack cocaine, in violation of

21 U.S.C. § 846 (2000), and six counts of possession with intent to

distribute more than fifty grams of crack cocaine, in violation of

21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C. § 2 (2000).                  The

district court sentenced him to a 180-month sentence.             Curbelo’s

counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), raising one issue but stating that, in his view,

there are no meritorious issues for appeal.          Curbelo has filed a

pro se supplemental brief.*           Finding no reversible error, we

affirm.

            Counsel suggests that the district court erred by denying

Curbelo’s    motion   to   dismiss    the    indictment   based   upon   the

destruction of drug evidence before his retrial.          Counsel asserts

that the evidence was destroyed in bad faith in contravention of a

court order.   Counsel also contends that Curbelo was prejudiced by

the destruction of the evidence because it prevented independent




     *
      We grant Curbelo’s motion to file a pro se supplemental
brief. We have carefully considered the claims raised therein and
find them to be without merit. We decline to address Curbelo’s
ineffective assistance of counsel claims in this direct appeal.
See United States v. Baldovinos, 434 F.3d 233, 239 (4th Cir.)
(providing standard), cert. denied, 126 S. Ct. 1407 (2006).

                                     - 3 -
testing of the drugs and examination of the plastic bags for latent

fingerprints, resulting in a violation of due process.

           The Supreme Court has held that, to establish a due

process violation for failure to preserve evidence, a defendant

must show that the evidence possessed exculpatory value that was

apparent prior to its destruction and that the defendant cannot

obtain   comparable    evidence   by   another   means.    California   v.

Trombetta, 467 U.S. 479, 488-89 (1984).          However, “the failure to

preserve this ‘potentially useful evidence’ does not violate due

process ‘unless a criminal defendant can show bad faith on the part

of the police.’”      Illinois v. Fisher, 540 U.S. 544, 547-48 (2004)

(emphasis added) (quoting Arizona v. Youngblood, 488 U.S. 51, 58

(1988));   see United States v. Newsome, 322 F.3d 328, 334 (4th Cir.

2003) (discussing test).

           Even if the drug evidence and the plastic bags were

potentially useful evidence, Curbelo failed to show that the

evidence was destroyed in bad faith.             Rather, trial testimony

disclosed that the evidence was deteriorating to the point that it

could have contaminated other evidence. We therefore conclude that

the destruction of the drug evidence did not amount to a violation

of Curbelo’s due process rights.

           In accordance with Anders, we have reviewed the record

for any meritorious issues and have found none.            Therefore, we

affirm Curbelo’s convictions and sentence.           This court requires


                                  - 4 -
that counsel inform his client, in writing, of his right to

petition the Supreme Court of the United States for further review.

If the client 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 the

client. 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




                              - 5 -
