                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-4689


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

PATRICK FITZGERALD SWEENEY,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      James K. Bredar, District Judge.
(8:10-cr-00271-JKB-1)


Submitted:   July 16, 2013                    Decided:   June 3, 2014


Before KEENAN, DIAZ, and FLOYD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William C. Brennan, Jr., William A. Mitchell, Jr., BRENNAN
MCKENNA MANZI SHAY LEVAN CHARTERED, Greenbelt, Maryland, for
Appellant.   Rod J. Rosenstein, United States Attorney, Deborah
A. Johnston, Arun Rao, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

              Patrick Fitzgerald Sweeney appeals his convictions for

possession      with     intent    to   distribute      heroin     (Count    1),   in

violation      of   21    U.S.C.    § 841(a)(1)       (2012);      distribution    of

heroin   on    March     23,   2009,    resulting     in   death    (Count   2),    in

violation of § 841(a)(1); use of a cell phone to facilitate the

March 23 distribution of heroin (Count 3), in violation of 21

U.S.C. § 843(b) (2012); and use of a cell phone to facilitate

the distribution of heroin from on or about February 16, 2009,

to March 10, 2009 (Count 5), and in December 2008 (Count 7), in

violation     of    § 843(b).      On   appeal,      Sweeney    asserts     that   the

district court abused its discretion by denying his motion to

sever and by refusing to strike a portion of the Government’s

rebuttal argument. *       We affirm.

              Sweeney     argues    that       the   district    court    erred     by

denying his motion to sever Counts 1-3 from the remaining counts

because the counts were not related.                  Two or more offenses may

be charged in the same indictment when the offenses “are of the

     *
        We granted Sweeney’s motion to hold this appeal in
abeyance pending the Supreme Court’s decision in Burrage v.
United States, 134 S. Ct. 881 (2014), and, after Burrage issued,
we gave Sweeney the opportunity to assert a claim based on that
decision.   By failing to pursue a claim under Burrage after
receiving notice of his right to do so, Sweeney has waived any
such claim.   See United States v. Robinson, 744 F.3d 293, 298
(4th Cir. 2014) (“A party who identifies an issue, and then
explicitly withdraws it, has waived the issue.”).



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same or similar character, or are based on the same act or

transaction,         or   are   connected         with      or   constitute          parts       of    a

common scheme or plan.”                   Fed. R. Crim. P. 8(a).                     Joinder of

multiple charges involving the same statute “is an unremarkable

example of offenses of the same or similar character.”                                       United

States       v.    Hawkins,     589       F.3d       694,    702-03       (4th       Cir.     2009)

(internal         quotation     marks      omitted).             In   determining           whether

charges are based on the same transaction or are part of a

common plan, “[w]e have interpreted the . . . rule flexibly,

requiring that the joined offenses have a logical relationship

to one another.”           United States v. Cardwell, 433 F.3d 378, 385

(4th Cir. 2005) (internal quotation marks omitted).                                      After our

de    novo     review,    we    conclude         that,      here,     the   joinder         of    the

offenses       was    proper    under      Rule      8(a).          See   United         States       v.

Mouzone, 687 F.3d 207, 219 (4th Cir. 2012) (stating standard of

review), cert. denied, 133 S. Ct. 899 (2013).

               Sweeney     next    asserts           that    having       the    counts      tried

together          prejudiced    him.           “To     successfully             challenge         the

district       court’s     refusal        to   sever        under     [Fed.     R.    Crim.       P.]

14(a), [Sweeney] faces the daunting task of demonstrating that

there was a serious risk that a joint trial would . . . prevent

the     jury      from    making      a    reliable         judgment        about        guilt        or

innocence.”          United States v. Blair, 661 F.3d 755, 770 (4th Cir.

2011)    (internal        quotation       marks       omitted).           After      a    thorough

                                                 3
review of the record on appeal, we conclude that the district

court did not abuse its discretion in denying the motion to

sever because the evidence on each count was overwhelming and

easily segregated and the joint trial did not hinder Sweeney’s

ability to testify.       See United States v. Dinkins, 691 F.3d 358,

367 (4th Cir. 2012) (stating standard of review), cert. denied,

133 S. Ct. 1278 (2013); see also Blair, 661 F.3d at 770 (holding

that defendant failed to demonstrate clear prejudice required

for severance); United States v. Caver, 470 F.3d 220, 238 (6th

Cir. 2006) (“[J]uries are presumed capable of sorting evidence

and    separately     considering       each      count.”)   (internal   quotation

marks omitted); United States v. Goldman, 750 F.2d 1221, 1225

(4th Cir. 1984) (discussing evidence needed to establish clear

prejudice to right to testify).

            Finally, Sweeney argues that the district court erred

by    refusing   to   strike       an   allegedly     improper   portion   of   the

Government’s rebuttal argument.                   Reversal based upon improper

conduct by the prosecutor is merited when “the remarks were, in

fact,    improper[]     and    .    .    .   so    prejudiced    the   defendant’s

substantial rights that the defendant was denied a fair trial.”

United States v. Chong Lam, 677 F.3d 190, 209 (4th Cir. 2012)

(internal quotation marks omitted); see United States v. Wilson,

624 F.3d 640, 656-57 (4th Cir. 2010) (discussing factors courts

consider in determining whether prejudice exists).                       Assuming,

                                             4
without deciding, that the prosecutor’s comment was improper,

Sweeney cannot establish prejudice.            We therefore conclude that

the district court did not abuse its discretion in refusing to

strike the contested material.        See United States v. Green, 599

F.3d 360, 379 (4th Cir. 2010) (stating standard of review).

           Accordingly, we affirm the district court’s judgment.

We   dispense   with   oral   argument   because     the   facts   and   legal

contentions     are   adequately   presented    in   the   materials     before

this court and argument would not aid the decisional process.


                                                                    AFFIRMED




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