UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4463

JOHN ROGER CLAYTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
William L. Osteen, Sr., District Judge.
(CR-97-174)

Submitted: February 26, 1999

Decided: March 22, 1999

Before WILLIAMS and MOTZ, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Kearns Davis, BROOKS, PIERCE, MCLENDON, HUMPHREY &
LEONARD, L.L.P, Greensboro, North Carolina, for Appellant. Wal-
ter C. Holton, Jr., United States Attorney, Paul A. Weinman, Assis-
tant United States Attorney, Winston-Salem, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

John Roger Clayton appeals his conviction for possession with
intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)
(1994). Clayton was arrested following the execution of a search war-
rant obtained by the Rowan County Sheriff's Department with the
assistance of the Salisbury Police Department. Acting on information
that Clayton was armed and likely to be violent, the officers broke
down the door to Clayton's residence shortly after announcing their
presence and intentions. After Clayton's brief and unsuccessful flight,
arresting officers found more than seventy-four grams of crack
cocaine drying in Clayton's bedroom and additional narcotics on
Clayton's person. Failing in his attempt to suppress the evidence
found during the execution of the warrant, Clayton entered a condi-
tional guilty plea to the possession charge. Clayton now appeals his
conviction contending that the execution of the search warrant vio-
lated the Fourth Amendment.

In the district court, Clayton sought suppression of the fruits of the
search of his residence because state officers violated the federal
"knock and announce" statute. See 18 U.S.C. § 3109 (1994); United
States v. Kennedy, 32 F.3d 876, 882 (4th Cir. 1994). The district
court, after noting that Clayton's violent reputation and propensity to
carry a weapon were "uncontested," decided that the officers had
waited long enough to satisfy the statute. Clayton did not attempt to
controvert the district court's conclusions regarding Clayton's reputa-
tion or the possibility he might be armed. In this court, Clayton con-
tends that the entering officers violated his Fourth Amendment rights
because there was no reliable information in the officers' possession
to create the reasonable suspicion that exigent circumstances justified
the rapidity of the officers' entry. Clayton claims the officers' infor-
mation at the time of their entry lacked the "something more" than
bare information required to rise to the level of a reasonable suspi-

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cion. See Alabama v. White, 496 U.S. 325, 329-30 (1990) (citing
United States v. Sokolow, 490 U.S. 1, 7 (1989)).

Essentially, Clayton contests on appeal what the district court
determined was "uncontested" in deciding the motion to suppress.
Because the district court considered the matter closed, Clayton did
not require the court to pass on the reliability of the information on
which the officers relied. Neither did the district court rule on the
existence of a reasonable suspicion of exigent circumstances. The
court was only asked to determine whether the facts as presented
amounted to a violation of the statute.

In the absence of a contemporaneous objection to the officers'
entry on the basis of what Clayton now alleges was unreliable infor-
mation supporting the existence of exigent circumstances, Clayton
has forfeited his entitlement to appellate correction of any ensuing
error stemming from the allegedly unreliable information. See United
States v. Tipton, 90 F.3d 861, 873-74 (4th Cir. 1996), cert. denied,
117 S.Ct. 2414 (1997). Clayton pursues his appeal on grounds which
are decidedly distinct from the grounds on which he sought to have
the evidence suppressed. As a result of Clayton's failure to preserve
this issue in the district court, our review is restricted to a search for
plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993).
Accordingly, Clayton must show that the district court committed an
error that was plain in light of established precedent, and that error
must have affected Clayton's substantial rights. See id. at 732; United
States v. Hastings, 134 F.3d 235, 239 (4th Cir.), cert. denied, 118
S.Ct. 1852 (1998). Moreover, even if Clayton were to make the
required showing, this court will not exercise its discretion to correct
the error unless it "`seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.'" Olano , 507 U.S. at 732 (quoting
United States v. Young, 470 U.S. 1, 15 (1985)).

There was no plain error in the district court's determination that
the fruits of the search of Clayton's residence were admissible. Clay-
ton asks this court to find as a matter of fact that the source of the
officers' information supporting their entry was unreliable. This
court's role in fact-finding "is, and should be, quite limited." Neel v.
Waldrop, 639 F.2d 1080, 1084 (4th Cir. 1981). The district court
found that Clayton's violent reputation and propensity to carry a

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weapon were uncontested. To describe this ruling as error would
require this court to determine factual matters that the district court
was not given the opportunity to decide. Consequently, in light of the
record on appeal, it is impossible to conclude that there was plain
error on the part the district court. This court is not in a position to
pass on issues of credibility and reliability, especially in a search for
plain error. See, e.g., United States v. D'Anjou, 16 F.3d 604, 614 (4th
Cir. 1994).

In the absence of plain error, there is no merit to Clayton's appeal.
As a result, we affirm Clayton's conviction and sentence. We dis-
pense 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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