                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

                                         3
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.


                                    4
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

                                             5
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

                                         6
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

                                          7
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.”).


                                            8
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.”

                                               9
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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