                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-4631


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

             v.

PATRICK SCHWENKE,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:07-cr-00079-FDW-1)


Submitted:    January 19, 2010              Decided:   January 26, 2010


Before NIEMEYER, KING, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Patrick Schwenke, Appellant Pro Se. Amy Elizabeth Ray, Assistant
United States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

              Patrick Schwenke pled guilty to conspiracy to possess

marijuana      with   intent     to    distribute,       21    U.S.C.        § 846   (2006)

(Count One), and using and carrying a firearm during and in

relation to a drug trafficking crime or possession of a firearm

in furtherance of such a crime, 18 U.S.C. § 924(c) (2006) (Count

Four).         Upon   the      government’s           motion     for     a    substantial

assistance departure, U.S. Sentencing Guidelines Manual § 5K1.1,

p.s.       (2008),    Schwenke        was     sentenced        to      eighteen      months

imprisonment for the conspiracy followed by a consecutive five-

year term for the § 924(c) count.                     Proceeding pro se, Schwenke

appeals his conviction of the firearm offense. *                       We affirm.

              Schwenke was arrested at a warehouse he leased, which

contained evidence of his involvement in marijuana trafficking,

and where over 2000 pounds of marijuana had just been delivered.

From Schwenke’s residence, authorities seized $83,000 in cash,

two    ounces    of   marijuana,        and       a   shotgun.         Schwenke’s      plea

agreement stipulated that a factual basis existed for his guilty

plea and that the district court could use any uncontested facts


       *
       Under the terms of his plea agreement, Schwenke waived his
right to appeal his conviction. Because the government does not
seek to enforce the waiver, we need not address it.        United
States v. Blick, 408 F.3d 162, 168-69 (4th Cir. 2005).



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in   the    presentence       report       to       establish     the    factual      basis.

Schwenke consented to a plea hearing before a magistrate judge,

who conducted a Fed. R. Crim. P. 11 hearing and accepted his

plea,    but     deferred    the     factual         basis    until     sentencing.         At

sentencing,       Schwenke        made    no    objections        to    the    presentence

report and expressly agreed that the facts in the presentence

report constituted a factual basis for his guilty plea.

               Schwenke     now    asserts          that    his   guilty      plea    to   the

firearm    offense     lacked       a     factual      basis      because     the     shotgun

seized from his home had not been used for a long time and that

the district court erred in accepting his guilty plea.                               Because

Schwenke did not raise this issue in the district court, we

review     the    claim     of     Rule    11       error     under     the   plain    error

standard.        United States v. Vonn, 535 U.S. 55, 63 (2002); United

States v. Martinez, 277 F.3d 517, 525 (4th Cir. 2002).                                     The

district court may rely on stipulated facts to support a plea.

United States v. Ketchum, 550 F.3d 363, 367 (4th Cir. 2008).

Schwenke did not assert in the district court that he possessed

the shotgun for any reason other than furtherance of the drug

conspiracy.          His    case     is    thus       distinguishable         from    United

States v. Monzon, 429 F.3d 1268 (9th Cir. 2005), on which he

relies.        We conclude that the district court did not err in

accepting      his   guilty       plea.        To    the     extent    that    Schwenke     is

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raising a claim of ineffective assistance of counsel, we decline

to consider the claim because the face of the record does not

conclusively       establish     that       counsel     provided         ineffective

representation.      United States v. James, 337 F.3d 387, 391 (4th

Cir. 2003).

            We    therefore    affirm     the    judgment     of    the    district

court.     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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