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The Honorable Gary A. Fenner, United States District Judge for the Western

District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-1401

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Johnny W. Swanner, *

* [UNPUBLISHED]

Appellant, *

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Submitted: June 3, 2010

Filed: June 15, 2010

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Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

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PER CURIAM.

While Johnny W. Swanner was serving supervised release after completing a

federal prison sentence for a drug offense, the district court1

 found that he committed

multiple violations of his release conditions, as alleged in two violation reports, and

revoked supervised release. The court sentenced him to 24 months in prison and 3

years of supervised release, and Swanner appeals. For reversal, he disputes many of

the facts recited in the violation reports, and he also argues that (1) his sentence is too
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long, (2) defense counsel rendered ineffective assistance, (3) he is not receiving

adequate medical treatment in prison, (4) he was not shown the arrest warrant, and the

charges were not read to him, when he was arrested on the violator’s warrant; (5) he

never received disclosure of the evidence against him or written notice of the alleged

violations; (6) his revocation hearing was not held within a reasonable time after he

was arrested; and (7) he was not informed of all of the alleged violations until the

revocation hearing. For the following reasons, we affirm.

Swanner waived any challenge to the violation reports’ factual allegations. He

admitted some alleged facts, and as to the others he stipulated that law enforcement

officials would testify in conformity with their reports to the probation officer, he did

not deny that those reports were true, he declined to speak when given an opportunity

to do so, and he did not even attempt to submit rebuttal evidence. See United States

v. Booker, 576 F.3d 506, 509-11 (8th Cir.) (waiver is intentional relinquishment of

known right, and waived claims are unreviewable on appeal), cert. denied, 130 S. Ct.

777 (2009). 

As to his sentence, Swanner has not rebutted the presumption that the

sentence--at the low end of the undisputed Guidelines range, and within statutory

limits--is reasonable. See 18 U.S.C. § 3583(e)(3), (h); 21 U.S.C. § 841(b)(1)(A);

United States v. Petreikis, 551 F.3d 822, 824 (8th Cir. 2009) (revocation sentence

within Guidelines range is accorded presumption of substantive reasonableness on

appeal). Further, his claims of ineffective assistance of counsel are not properly

before us in this direct criminal appeal, see United States v. Ramirez-Hernandez, 449

F.3d 824, 827 (8th Cir. 2006), and neither are his complaints about his medical

treatment in prison. 

Because Swanner’s remaining arguments were not raised below, we review

only for plain error, see United States v. Aldridge, 561 F.3d 759, 765 (8th Cir. 2009),

cert. denied, 130 S. Ct. 1095 (2010); and we find no reversible plain error, because
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Swanner has not shown that any such error affected his substantial rights or seriously

affected the fairness, integrity, or public reputation of judicial proceedings, see United

States v. Wisecarver, 598 F.3d 982, 989 (8th Cir. 2010) (describing steps in plain error

review). 

Accordingly, we affirm the district court’s judgment, and we grant counsel’s

motion to withdraw.

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