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                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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