US v. Shawntay L. Swann, No. 07-4531 (4th Cir. 2008)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-4531 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. SHAWNTAY LAKEITH SWANN, Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 United States v. Beasley, 495 F.3d 142, only for plain error. 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. motion to file a pro se supplemental brief. oral argument adequately because presented in the the facts and materials We deny Swann s We dispense with legal before contentions the court are and argument would not aid the decisional process. AFFIRMED 2

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