                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-5112


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

GREGORY THOMAS MYERS, a/k/a     Dr.   Gregory   T.   Myers,   d/b/a
Gregory T. Myers, P.C.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.  James C. Dever III,
District Judge. (5:07-cr-00255)


Submitted:   October 15, 2010             Decided:   November 22, 2010


Before KING, SHEDD, and KEENAN, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James B. Craven, III, Durham, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

               Gregory         T.       Myers       appeals         the       seventy-one      month

sentence imposed by the district court after he pled guilty to

two   counts        of   mail       fraud      in    violation           of    18    U.S.C.   § 1341

(2006),   and       one     count       of     aiding     and       abetting        mail    fraud    in

violation of 18 U.S.C. §§ 2, 1341 (2006).                                      On appeal, Myers

argues that the district court committed procedural error in

allowing his ex-wife to make an unsworn statement at sentencing

because she was not a crime victim as that term is defined under

18    U.S.C.    § 3771         (2006).          Myers        further          contends      that    the

district court erred in not placing the witness under oath prior

to her statement, and not allowing him an opportunity to cross-

examine her.         The Government argues that the witness was a crime

victim    because         she       was      affected         by     Myers’s         crime.         The

Government also argues that even if the witness was not a crime

victim,       her    statement           was     relevant           to    Myers’s        background,

conduct, and character, and the district court properly admitted

the   statement          for    the      purpose        of    fashioning            an   appropriate

sentence under 18 U.S.C. § 3661 (2006).

               We    review         a   sentence        for     reasonableness,             using    an

abuse    of    discretion           standard         of      review.          United       States    v.

Carter,       564    F.3d      325,      328    (4th         Cir.    2009).          Similarly,       a

district court’s rulings regarding the admission or exclusion of

evidence will not be reversed absent an abuse of discretion.

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United States v. Stitt, 250 F.3d 878, 896 (4th Cir. 2001).                                          A

district court “abuses its discretion when it makes an error of

law.”         Koon       v.     United       States,       518    U.S.       81,    100    (1996).

Evidentiary         rulings       are    also      subject        to   review       for   harmless

error under Fed. R. Crim. P. 52(a), and will be found harmless

if    the    reviewing         court     can     conclude,        “without         stripping      the

erroneous          action      from    the     whole,      that    the   judgment         was     not

substantially swayed by the error.”                              United States v. Brooks,

111    F.3d    365,       371    (4th     Cir.      1997)    (internal         quotations         and

citation omitted).

               Under the Crime Victims Rights Act (“CVRA”), a crime

victim has “[t]he right to be reasonably heard at any public

proceeding          in    the     district         court     involving         release,      plea,

sentencing, or any parole proceeding.”                            18 U.S.C. § 3771(a)(4).

A crime victim is defined as “a person directly and proximately

harmed as a result of the commission of a Federal offense.”                                       18

U.S.C. § 3771(e).               We need not determine, however, whether the

witness was a crime victim under 18 U.S.C. § 3771, as it is

clear       that    her       statement      was    admissible         for    the    purpose      of

imposing an appropriate sentence under 18 U.S.C. § 3661.

               Under      18     U.S.C.      §   3661,      “[n]o      limitation         shall    be

placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

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imposing an appropriate sentence.”                 After a thorough review of

the    record,   we   conclude      that     the    witness’s    statement      was

relevant to Myers’s background, character, and conduct, and was

thus   admissible     for   the    purpose    of     imposing   an     appropriate

sentence.     While Myers generally objected to the admissibility

of the statement in the district court, he did not ask that the

witness be sworn prior to making the statement.                  Nor did he ask

for    an   opportunity     to    cross-examine      her   or   argue    that   her

statement was somehow unreliable.              Issues raised for the first

time on appeal are subject to review for plain error.                           See

United States v. White, 405 F.3d 208, 215 (4th Cir. 2005).                       To

establish plain error, Myers “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).      Here, even assuming error, we find that Myers

has not shown that the error affected his substantial rights.

             Accordingly, we affirm Myers’s 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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