United States v. Johnny Swanner , 379 F. App'x 544 ( 2010 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-1401
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Western
* District of Missouri.
Johnny W. Swanner, *
* [UNPUBLISHED]
Appellant, *
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Submitted: June 3, 2010
Filed: June 15, 2010
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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
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PER CURIAM.
While Johnny W. Swanner was serving supervised release after completing a
federal prison sentence for a drug offense, the district court1 found that he committed
multiple violations of his release conditions, as alleged in two violation reports, and
revoked supervised release. The court sentenced him to 24 months in prison and 3
years of supervised release, and Swanner appeals. For reversal, he disputes many of
the facts recited in the violation reports, and he also argues that (1) his sentence is too
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
long, (2) defense counsel rendered ineffective assistance, (3) he is not receiving
adequate medical treatment in prison, (4) he was not shown the arrest warrant, and the
charges were not read to him, when he was arrested on the violator’s warrant; (5) he
never received disclosure of the evidence against him or written notice of the alleged
violations; (6) his revocation hearing was not held within a reasonable time after he
was arrested; and (7) he was not informed of all of the alleged violations until the
revocation hearing. For the following reasons, we affirm.
Swanner waived any challenge to the violation reports’ factual allegations. He
admitted some alleged facts, and as to the others he stipulated that law enforcement
officials would testify in conformity with their reports to the probation officer, he did
not deny that those reports were true, he declined to speak when given an opportunity
to do so, and he did not even attempt to submit rebuttal evidence. See United States
v. Booker, 576 F.3d 506, 509-11 (8th Cir.) (waiver is intentional relinquishment of
known right, and waived claims are unreviewable on appeal), cert. denied, 130 S. Ct.
777 (2009).
As to his sentence, Swanner has not rebutted the presumption that the
sentence--at the low end of the undisputed Guidelines range, and within statutory
limits--is reasonable. See 18 U.S.C. § 3583(e)(3), (h); 21 U.S.C. § 841(b)(1)(A);
United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009) (revocation sentence
within Guidelines range is accorded presumption of substantive reasonableness on
appeal). Further, his claims of ineffective assistance of counsel are not properly
before us in this direct criminal appeal, see United States v. Ramirez-Hernandez, 449
F.3d 824, 827 (8th Cir. 2006), and neither are his complaints about his medical
treatment in prison.
Because Swanner’s remaining arguments were not raised below, we review
only for plain error, see United States v. Aldridge, 561 F.3d 759, 765 (8th Cir. 2009),
cert. denied, 130 S. Ct. 1095 (2010); and we find no reversible plain error, because
-2-
Swanner has not shown that any such error affected his substantial rights or seriously
affected the fairness, integrity, or public reputation of judicial proceedings, see United
States v. Wisecarver, 598 F.3d 982, 989 (8th Cir. 2010) (describing steps in plain error
review).
Accordingly, we affirm the district court’s judgment, and we grant counsel’s
motion to withdraw.
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