United States v. John Patton , 449 F. App'x 252 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4322
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN WILSON PATTON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Asheville. Lacy H. Thornburg,
District Judge. (1:07-cr-00033-LHT-10)
Submitted: September 28, 2011 Decided: October 6, 2011
Before GREGORY, DUNCAN, and WYNN, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Seth Neyhart, Chapel Hill, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Mark A. Jones, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Wilson Patton appeals his conviction and
sentences for conspiracy to possess with intent to distribute
fifty or more grams of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(A), and 846 (2006) (“Count One”), and for
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1) (2006) (“Count Two”). Patton filed a timely appeal,
arguing that (1) because Count Two recited Patton’s dismissed
May 20, 1998 charges as the basis of the § 922(g)(1) offense,
the indictment was fatally defective and there was insufficient
evidence at trial to sustain a conviction on Count Two; (2) the
district court erroneously classified him as a career offender;
and (3) the district court erred in failing to consider the
sentencing disparity between crack and powder cocaine, in light
of Kimbrough v. United States, 552 U.S. 85 (2007). For the
reasons set forth below, we affirm Patton’s convictions but
vacate his sentences and remand for resentencing in light of our
recent decision in United States v. Simmons, 649 F.3d 237 (4th
Cir. 2011) (en banc).
Patton first argues that the indictment suffered from
a constructive amendment at trial. In support of this claim, he
observes that Count Two of the indictment recites his May 20,
1998 charges as the basis for the § 922(g)(1) felon-in-
possession offense. As the Government conceded at sentencing,
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however, Patton had never been convicted of these charges;
instead, they had been dismissed. Despite the fact that Patton
had been previously convicted of several other felonies, he
claims that these other prior felony convictions cannot have
served at trial as the basis for his § 922(g)(1) conviction
without constructively amending the indictment. See United
States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999). To the
extent that a constructive amendment occurs, it is error per se
and must be corrected on appeal even if the defendant did not
raise the issue below. United States v. Floresca, 38 F.3d 706,
714 (4th Cir. 1994) (en banc).
While it is true that a variance between the
indictment and the evidence presented at trial may in some
circumstances be fatal where the government chooses to word an
indictment more narrowly than is necessary, see Randall, 171
F.3d at 208-10, Patton is incorrect that any such variance
occurred in this case. Patton stipulated at trial that he “had
been convicted in a court of law of a crime punishable by
imprisonment for a term exceeding one year . . . and that said
conviction occurred prior to October 29, 2006.” Because the
jury relied on this generic stipulation to find that he had
committed a felony on May 20, 1998 and was therefore guilty of
the particular § 922(g)(1) charge recited in the indictment,
Patton was not convicted “on charges other than those made in
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the indictment against him.” United States v. Foster, 507 F.3d
233, 242-43 (4th Cir. 2007).
To the extent that Patton asserts that there was
insufficient evidence to support a conviction on Count Two,
given his erroneous stipulation with respect to the May 20, 1998
offense, his argument must fail. “Because a stipulation induces
the government not to offer evidence to prove the facts involved
in the stipulation, a defendant may not argue at trial or on
appeal that the stipulation is insufficient to prove beyond a
reasonable doubt the facts or elements to which he has
stipulated.” United States v. Muse, 83 F.3d 672, 679 (4th Cir.
1996); accord United States v. Harrison, 204 F.3d 236, 240 (D.C.
Cir. 2000); United States v. Reedy, 990 F.2d 167, 169 (4th Cir.
1993). Because any error of proof was invited by Patton, see
United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997), we
affirm his conviction on Count Two.
Patton next urges that he was improperly designated as
a career offender under U.S. Sentencing Guidelines Manual
(“USSG”) § 4B1.1. Because Patton did not raise any of his
current arguments before the district court, this court’s review
is for plain error. United States v. Olano, 507 U.S. 725, 732
(1993); United States v. Lynn, 592 F.3d 572, 577 (4th Cir.
2010). To establish plain error, Patton must show that “(1) an
error was made; (2) the error is plain; and (3) the error
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affects substantial rights.” United States v. Massenburg, 564
F.3d 337, 342–43 (4th Cir. 2009). “If all three of these
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the
error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” United States v. Carr, 303
F.3d 539, 543 (4th Cir. 2002) (internal quotation marks,
citations, and alterations omitted). In the sentencing context,
an error affects substantial rights if the defendant can show
that the sentence imposed “was longer than that to which he
would otherwise be subject.” United States v. Washington, 404
F.3d 834, 849 (4th Cir. 2005) (internal quotation marks and
citation omitted).
USSG § 4B1.1(a)(3) requires that the defendant have
been convicted of at least two predicate felony offenses before
being designated a career offender under the Guidelines. A
felony, for purposes of § 4B1.1, is a crime “punishable by death
or imprisonment for a term exceeding one year.” USSG § 4B1.2,
cmt. n.1. In this case, the presentence report designated
Patton as a career offender under § 4B1.1 based on several prior
North Carolina convictions: a 1993 marijuana conviction and
three 1998 cocaine convictions. Patton now maintains that each
of his 1998 cocaine convictions was not a felony for purposes of
USSG § 4B1.1(a)(3) because the maximum sentence that could be
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imposed on Patton for these convictions did not exceed one year.
See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (setting out minimum
and maximum sentences applicable under North Carolina’s
structured sentencing regime); Appellant’s Br. at 7, 9-10.
At the time of Patton’s sentencing, this court
determined whether a prior conviction qualified as a felony for
purposes of USSG § 4B1.1 by considering “the maximum aggravated
sentence that could be imposed for that crime upon a defendant
with the worst possible criminal history.” United States v.
Harp, 406 F.3d 242, 246 (4th Cir. 2005). While Patton’s appeal
was pending, however, Harp was overruled by the en banc decision
in Simmons. Simmons held that a prior North Carolina offense
was punishable for a term exceeding one year only if the
particular defendant before the court had been eligible for such
a sentence under the applicable statutory scheme, taking into
account his criminal history and the nature of his offense. See
also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth
North Carolina’s structured sentencing scheme).
Given the opacity of the record as to the precise
characterization of Patton’s prior North Carolina convictions,
we express no opinion as to whether his prior convictions
qualify as felonies for purposes of USSG § 4B1.1. In view of
Simmons, however, we vacate Patton’s sentences and remand the
case to the district court for resentencing on both Count One
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and Count Two, leaving the proper characterization of his prior
convictions as an issue to be determined after further fact
finding by the district court. * See United States v. Slade, 631
F.3d 185, 191 (4th Cir.), cert. denied, 131 S. Ct. 2943 (2011);
United States v. Diaz–Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).
Given our determination that this case must be
remanded for resentencing, Patton’s arguments with respect to
the crack/powder sentencing disparity are moot. We indicate no
view as to whether the Fair Sentencing Act of 2010, Pub. L. No.
111–220, is retroactively applicable to a defendant in Patton’s
circumstances, leaving that determination in the first instance
to the district court.
Accordingly, we affirm Patton’s conviction and vacate
his sentences, remanding the case to the district court for
resentencing. We dispense with oral argument because the facts
and legal contentions are adequately presented in the material
before the court and argument will not aid the decisional
process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
*
We of course do not fault the Government or the district
court for their reliance upon unambiguous circuit authority at
the time of Patton’s indictment and conviction.
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