US v. John Patton

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:07-cr-00033-LHT-10 Copies to all parties and the district court/agency. [998695025].. [09-4322]

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Date Filed: 10/06/2011

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UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.

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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).
reasons

set

forth

below,

we

affirm

Patton’s

For the

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

possession offense.

the

basis

for

the

§ 922(g)(1)

felon-in-

As the Government conceded at sentencing,
2

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however,

Patton

Date Filed: 10/06/2011

had

never

been

Page: 3 of 7

convicted

of

these

charges;

instead, they had been dismissed.

Despite the fact that Patton

had

several

been

previously

convicted

of

other

felonies,

he

claims that these other prior felony convictions cannot have
served at
without

trial

as

the

constructively

basis

for

amending

his

the

§ 922(g)(1)

indictment.

conviction
See

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).

United
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
United States v. Floresca, 38 F.3d 706,

raise the issue below.

714 (4th Cir. 1994) (en banc).
While
indictment

and

it

is

the

true

evidence

that

a

presented

variance

between

at

may

trial

in

the
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

occurred in this case.
been

convicted

in

a

is

incorrect

that

any

such

variance

Patton stipulated at trial that he “had
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.”

Page: 4 of 7

United States v. Foster, 507 F.3d

233, 242-43 (4th Cir. 2007).
To
insufficient

the

extent

evidence

to

that

Patton

support

that

conviction

a

asserts

there

on

Count

was
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

stipulated.”

the

facts

or

elements

to

which

he

has

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

(“USSG”)

offender
§ 4B1.1.

under

U.S.

Because

Sentencing

Patton

did

Guidelines

not

raise

any

Manual
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

2010).

To establish plain error, Patton must show that “(1) an

error

was

States

made;

(2)

v.

the

Lynn,

error
4

592

is

F.3d

plain;

572,

and

577

(3)

(4th

the

Cir.

error

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affects substantial rights.”
F.3d

337,

342–43

(4th

Page: 5 of 7

United States v. Massenburg, 564

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,

reputation of judicial proceedings.”
F.3d

539,

543

(4th

Cir.

2002)

integrity,

or

public

United States v. Carr, 303
(internal

citations, and alterations omitted).

quotation

marks,

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.”
F.3d

834,

849

(4th

Cir.

United States v. Washington, 404

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.”
cmt.

n.1.

In

this

case,

the

presentence

USSG § 4B1.2,

report

designated

Patton as a career offender under § 4B1.1 based on several prior
North

Carolina

convictions:

a

1993

three 1998 cocaine convictions.

marijuana

conviction

and

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.”
Harp, 406 F.3d 242, 246 (4th Cir. 2005).

United States v.

While Patton’s appeal

was pending, however, Harp was overruled by the en banc decision
in Simmons.
was

Simmons held that a prior North Carolina offense

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

finding by the district court. *

determined

after

further

fact

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,

resentencing.

remanding

the

case

to

the

district

court

for

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.

7