USCA4 Appeal: 23-7048 Doc: 23 Filed: 12/17/2024 Pg: 1 of 3

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-7048

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

MITCHELL SWAIN,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:07-cr-00062-D-1)

Submitted: November 27, 2024 Decided: December 17, 2024

Before WYNN, THACKER, and HEYTENS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Mitchell Swain, Appellant Pro Se. David A. Bragdon, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 23-7048 Doc: 23 Filed: 12/17/2024 Pg: 2 of 3

PER CURIAM:

Mitchell Swain appeals the district court’s order, entered on remand from this court,

see United States v. Swain,

(4th Cir. 2022), granting Swain’s counseled

motions for a sentence reduction under § 404(b) of the First Step Act of 2018 (“2018

FSA”),

Stat. 5194, 5222. Swain sought to reduce his 324-month

sentence, which was imposed in February 2009, to between 180- and 210-months of

imprisonment. After finding that Swain was eligible for a sentence reduction under the

2018 FSA, properly calculating the revised Sentencing Guidelines range, and thoroughly

evaluating the

(a) factors, the district court reduced Swain’s sentence to

288 months, but it rejected Swain’s arguments in favor of a greater reduction.

Upon review, we discern no abuse of discretion or reversible error in the district

court’s decision. See United States v. Reed,

(4th Cir. 2023)

(explaining the standard of review for adjudication of § 3582(c)(1)(B) and § 404(b)

motions). Although not specifically challenged on appeal, in response to the primary issue

advanced in the district court, we observe that the district court properly concluded that it

could not “recalculate [Swain’s] benchmark Guidelines range in any way other than to

reflect the retroactive application of the Fair Sentencing Act.” Concepcion v. United

States,

, 498 n.6 (2022).

In this court, Swain focuses on the district court’s May 9, 2024, order dismissing

for lack of jurisdiction Swain’s pro se Fed. R. Civ. P. 59(e) motion to alter or amend the

court’s order reducing Swain’s sentence, which was filed prior to counsel noting this

appeal. While the district court’s jurisdictional ruling was in error because the timely filing

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of a Rule 59(e) motion tolls the appeal period until the motion is resolved, see Fed. R. App.

P. 4(a)(4)(A)(iv), (B)(i), we conclude that this is not reversible error because Swain’s

motion failed to assert viable grounds for Rule 59(e) relief, see Robinson v. Wix Filtration

Corp.,

(4th Cir. 2010) (explaining that a Rule 59(e) motion must advance

“either (1) an intervening change in the controlling law, (2) new evidence that was not

available at trial, or (3) that there has been a clear error of law or a manifest injustice”).

That is, while Swain restated issues that were rejected in the court’s adjudication of the two

counseled motions for relief, he did not establish clear error in those rulings, and the other

advanced issues were either newly raised or contrary to the law. Because any error in the

district court’s failure to address the Rule 59(e) motion ultimately is harmless, we conclude

that remand is not warranted.

Accordingly, we deny Swain’s motions to remand this case for adjudication of the

Rule 59(e) motion and to appoint counsel on appeal, and we affirm the district court’s

dispositive order. United States v. Swain, No. 4:07-cr-00062-D-1 (E.D.N.C. Sept. 29,

2023). 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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