United States v. Swann , 296 F. App'x 371 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4531
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SHAWNTAY LAKEITH SWANN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen,
Senior District Judge. (1:06-cr-00443-WLO)
Submitted: October 14, 2008 Decided: October 16, 2008
Before KING, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James R. Saunders, HARRINGTON, SAUNDERS & JONES, P.A.,
Greenville, North Carolina, for Appellant. Anna Mills Wagoner,
United States Attorney, David P. Folmar, Jr., Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Shawntay Lakeith Swann appeals his life sentence
entered pursuant to his convictions for distribution of crack
cocaine. The Government filed two Informations of Prior
Conviction, one prior to voire dire of the jury and one after
voire dire had begun but prior to the jury being sworn. Swann
asserts that he did not receive timely notice of the second
conviction, as required by 21 U.S.C. § 851 (2000). However,
because this issue was not raised at trial, it is reviewable
only for plain error. United States v. Beasley, 495 F.3d 142,
148 (4th Cir. 2007), cert. denied, 128 S. Ct. 1471 (2008).
Moreover, Swann’s claim is foreclosed by our decision in Beasley
that a district court that accepts an § 851 information after
the jury was selected but before it was sworn has not plainly
erred. Id. at 149-50. Accordingly, we affirm. We deny Swann’s
motion to file a pro se supplemental brief. 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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