United States v. Swain

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4089
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYREISE D. SWAIN,
Defendant – Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry F. Floyd, District Judge.
(6:08-cr-00326-HFF-1)
Submitted: July 23, 2010 Decided: October 15, 2010
Before NIEMEYER, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Robert M. Sneed, ROB SNEED LAW FIRM, LLC, Greenville, South
Carolina, for Appellant. Kevin F. McDonald, Acting United
States Attorney, A. Lance Crick, Assistant United States
Attorney, Greenville, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tyreise D. Swain appeals his conviction and sentence
for various crimes arising out of his robbery of five Sally
Beauty Supply Stores in South Carolina. For the following
reasons, we affirm Swain’s conviction and sentence.
I.
From December 2, 2006 through March 9, 2007, Swain
robbed five Sally Beauty Supply Stores in upstate South Carolina
and, in June 2007, he robbed a Sally Beauty Supply Store in
Gastonia, North Carolina. Swain utilized a similar plan in
committing each robbery, entering the stores near closing on a
Friday or Saturday night. Once in the store, he would then ask
for assistance from an employee, brandish a firearm, which
several employees identified as a .25 caliber handgun, and
request the money from the cash register and the safe. Swain
would then take the employees to the back room where the safe
was located and tell them to count to fifty or one hundred
before leaving. During each robbery, Swain took at least one
employee’s driver’s license and would threaten the employees
that, if they aided the police in identifying him, he would kill
them. Swain would provide a specific false description that the
employees should give police — for instance, that he was black
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or wore a mask. Swain is, in fact, a light-skinned Hispanic
male of short to medium height.
Investigator Jeff Maxwell with the Greenville County
Sheriff’s Office was assigned to the robbery of the Greenville
Sally Beauty Supply Store and, in late May 2007, received a tip
from a police officer in Connecticut that Swain could be
responsible for the robberies. Acting on this tip, Maxwell
prepared a photo lineup with Swain’s picture; multiple employees
eventually picked Swain out of the lineup. Maxwell thus
prepared an arrest warrant for Swain and contacted the United
States Marshals Fugitive Task Force for assistance in
apprehending Swain.
The Task Force apprehended Swain at his girlfriend’s
apartment in Greenville. During a consensual search of the
apartment, officers seized directions to Sally Beauty Supply
Stores, .25 caliber ammunition, and the driver’s license for an
employee of the Sally Beauty Supply Store in Gastonia. Swain
was taken into custody and, the next day, provided a written
statement to police admitting to robbing the five Sally Beauty
Supply Stores in South Carolina.
Based upon this conduct, Swain was charged with five
counts of robbery, in violation of 18 U.S.C. § 1951(a) (2006);
five counts of using and carrying a firearm during a robbery, in
violation of 18 U.S.C. § 924(c)(1)(A) (2006); one count of being
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a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2006); and one count of being a
felon in possession of ammunition, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), (e) (2006). Following a jury trial,
Swain was convicted on all twelve counts and sentenced to 1494
months imprisonment. Swain noted a timely appeal.
II.
On appeal, Swain contends that the Government’s use of
the term “felon” and “fugitive” during the trial violated his
fair trial rights as did the district court’s use of the term
“felon” during its jury instructions. 1 Swain concedes that he
did not raise a contemporaneous objection at trial to the use of
these terms. Our review is thus for plain error. See Fed. R.
Crim. P. 52(b). “To establish plain error, the appealing party
must show that an error (1) was made, (2) is plain (i.e., clear
or obvious), and (3) affects substantial rights.” United States
v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Even assuming the
party satisfies this three-part showing, this Court may exercise
its discretion to correct the error only if it “seriously
affects the fairness, integrity or public reputation of judicial
1
Swain also argues that these remarks violated the Federal
Rules of Evidence. Having reviewed the record, we find no plain
error in admission of these remarks under those Rules.
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proceedings.” United States v. Massenburg, 564 F.3d 337, 343
(4th Cir. 2009) (internal quotation marks omitted).
Applying this standard, we find no plain error.
First, Swain contends that the Government’s use of the term
“felon” during its opening statement in describing the § 922(g)
counts against Swain instead of the statutory language, “crime
punishable by imprisonment for a term exceeding one year,”
violated Swain’s right to a fair trial. We disagree.
“In reviewing a claim of prosecutorial misconduct,
[this Court] review[s] the claim to determine whether the
conduct so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” United States v.
Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (internal quotation
marks omitted). Under this analysis, a defendant must first
show that the prosecutor’s remarks were improper and then
establish that the remarks prejudicially affected his
substantial rights thus depriving him of a fair trial. Id. In
making this second inquiry, we look to six factors: (1) the
degree to which the remarks had a tendency to mislead the jury
and prejudice the defendant; (2) "whether the remarks were
isolated or extensive"; (3) the strength of the evidence against
the defendant; (4) whether the comments were deliberately placed
to divert the jury’s attention; (5) whether the remarks were
invited by defense counsel; and (6) whether the district court
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gave curative instructions to the jury. Id. at 186 (citing
United States v. Wilson, 135 F.3d 291, 299 (4th Cir. 1998)).
First, these remarks were not improper. We have
previously indicated that the phrase “crime punishable by
imprisonment for a term exceeding one year” is “commonly
referred to as a ‘felony.’” United States v. Milton, 52 F.3d
78, 79 n.1 (4th Cir. 1995). In addition, in Old Chief v. United
States, 519 U.S. 172 (1997), on which Swain heavily relies, the
Court itself referred to § 922(g) as prohibiting “possession of
a firearm by anyone with a prior felony conviction.” Id. at 174
(emphasis added). Indeed, Swain has pointed to no case law
finding reversible error for using the word “felon” or “felony”
in describing a § 922(g) count.
Moreover, even assuming the Government’s comments were
improper, the Scheetz prejudice factors weigh heavily against
Swain. In Scheetz, we noted the “most important[]” factor was
strength of the evidence against the defendant. Scheetz, 293
F.3d at 186. As the factual record illustrates, the Government
provided overwhelming evidence of Swain’s guilt in this case.
The Government presented testimony from store employees from
each of the five stores Swain robbed, most of whom identified
Swain both in a photo lineup and in court. Moreover, at least
one employee from each store testified that Swain used a gun
during the robberies. Furthermore, Swain provided detailed
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statements to the police admitting that he robbed the stores in
question.
In addition, the remarks at issue were isolated,
unlikely to cause significant prejudice, and not deliberately
placed to divert the jury’s attention to extraneous matters. In
sum, the remarks were not improper and, assuming they were,
Swain cannot show that they prejudiced him.
Likewise, the use of the term “fugitive” during two
witnesses’ testimony and the Government’s closing argument does
not amount to plain error. In each case, the Government merely
used a factually accurate term to describe Swain’s apprehension—
that a fugitive arrest warrant was filed against him and that he
was found by the Fugitive Task Force.
Finally, the district court’s use of the term “felon”
in defining the § 922(g) counts in its instructions was not
plainly erroneous. Again, Swain has failed to cite any
precedent suggesting that substituting “felon” or “felony” for
“crime punishable by imprisonment for a term exceeding one year”
constitutes reversible error. This lack of support is not
surprising, because, as discussed, we have consistently used the
term “felon” as a shorthand in such cases. See, e.g., Milton,
52 F.3d at 81 (explaining that “in a felon-in[-]possession case
such as this, the district court must instruct the jury that the
government must prove beyond a reasonable doubt that at the time
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the defendant possessed the firearm he had a qualifying previous
felony conviction, that is a prior conviction for an offense
punishable by a term of imprisonment exceeding one year”)
(emphasis added).
Because we find no error, let alone plain error, we
likewise reject Swain’s invitation to find cumulative error in
this case. See United States v. Basham, 561 F.3d 302, 330 (4th
Cir. 2009).
Finally, Swain contends that the district court
committed reversible error during sentencing because it failed
to adequately explain its sentence. 2 We review a sentence for
abuse of discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to ensure
that the district court did not commit significant procedural
error, such as improperly calculating the Guidelines range,
2
The Government suggests that, because Swain did not object
to the adequacy of the district court’s explanation, plain error
review applies. See United States v. Lynn, 592 F.3d 572, 576-77
(4th Cir. 2010). In Lynn, however, we explained that a
defendant preserves an objection to the district court’s failure
to provide an individualized explanation for a sentence by
“drawing on argument from § 3553 for a sentence different than
the one ultimately imposed.” Lynn, 592 F.3d at 578. In this
case, Swain argued to the district court for a sentence of 1284
months imprisonment, the statutory minimum on the 18 U.S.C.
§ 924(c) counts, contending that such a sentence “covers all the
goals of sentencing as expressed through the factors in
3553(a).” By doing so, Swain preserved his objection. See
Lynn, 592 F.3d at 581 (“Tucker’s § 3553 arguments in the
district court for a different sentence than the one he received
preserved his claim of procedural sentencing error on appeal.”).
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failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
failing to adequately explain the sentence. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). We then review the
sentence for substantive reasonableness, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51. We
presume that a sentence within a properly calculated Guidelines
range is reasonable. United States v. Abu Ali, 528 F.3d 210,
261 (4th Cir. 2008); see also Rita v. United States, 551 U.S.
338, 345-59 (2007).
In this case, Swain contends that the district court
committed procedural error by failing to give an adequate
explanation for the sentence imposed. We disagree. During
sentencing, the district court adopted the Presentence Report,
which concluded that Swain had a total offense level of 32 and a
criminal history category of VI, yielding an advisory Guidelines
range of 210 months to 262 months on the robbery convictions,
plus a statutory mandatory minimum sentence of 1284 months for
the multiple § 924(c) convictions. Swain did not object to the
PSR but requested that the district court sentence him to the
1284 months without adding the Guidelines sentence, suggesting
that a sentence of 107 years imprisonment satisfied all of the
requirements under 18 U.S.C. § 3553(a) and provided adequate
deterrence. The district court responded, “I probably don’t
disagree with you, but he did certainly endanger several lives.”
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Swain declined the opportunity to allocute on his own behalf,
and the district court sentenced Swain to 1284 months plus 210
months.
We believe that the district court’s explanation for
Swain’s sentence is sufficient. We have explained that a
district court “need not necessarily issue a comprehensive,
detailed opinion,” as long as the district court’s explanation
satisfies us that the court considered the parties’ arguments
and exercised reasoned judgment in its sentencing decision.
United States v. Boulware, 604 F.3d 832, 837 (4th Cir. 2010).
In this case, the district court discussed the § 3553(a) factors
and, while suggesting that Swain’s request for a lower sentence
had some merit, noted that Swain’s conduct endangered lives. By
doing so, the district court has satisfied us that it reviewed
and rejected Swain’s arguments, made an individualized
determination of his case, and exercised reasoned judgment in
his sentencing.
For the foregoing reasons, we affirm Swain’s
conviction and sentence. 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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