UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4379
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LARRY J. FLOYD,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (CR-03-98)
Submitted: October 7, 2005 Decided: November 9, 2005
Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Frank D. Whitney, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Larry J. Floyd appeals his conviction for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
(2000) and possession of a stolen firearm in violation of 18 U.S.C.
§ 922(j) (2000). Finding no reversible error, we affirm.
Prior to trial, Floyd and the Government stipulated that
he had been convicted of a felony and that each of the firearms he
allegedly possessed had traveled in interstate commerce. They
filed these stipulations with the district court. The Government
closed its case without entering the stipulations into evidence.
Floyd moved for a judgment of acquittal under Fed. R. Crim. P. 29,
but did not mention the stipulation in his motion. After
presenting his evidence and resting his case, Floyd renewed his
motion for a judgment of acquittal. Floyd argued that the
Government had failed to introduce the stipulations into evidence.
The district court denied Floyd’s motion because the Government had
filed the stipulations with the court and had mentioned them in its
opening argument. The district court also allowed the Government
to reopen its case to submit the stipulations into evidence.
Floyd claims the district court erred when it allowed the
Government to reopen its case to admit the stipulations into
evidence. A district court’s decision to allow a party to reopen
its case is reviewed for abuse of discretion. United States v.
Abbas, 74 F.3d 506, 510 (4th Cir. 1996). Floyd also claims the
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district court erred when it denied his motion for a judgment of
acquittal because the evidence in the stipulations was not properly
admitted. The court’s denial of a motion for judgment of acquittal
is reviewed de novo. United States v. Gallimore, 247 F.3d 134, 136
(4th Cir. 2001).
“A district court may allow the Government to reopen its
case even after the defendant makes a Rule 29 motion.” United
States v. Gray, 405 F.3d 227, 238 n.5 (4th Cir. 2005). The
decision to allow the Government to reopen its case is within the
district court’s sole discretion. Abbas, 74 F.3d at 510. When
reviewing whether the district court abused its discretion in
ruling on a party’s motion to reopen its case, we review whether
(1) the moving party “provided a reasonable explanation for failing
to present the evidence in its case-in-chief”; (2) “the evidence
was relevant, admissible, or helpful to the jury”; and (3)
“reopening the case would have infused the evidence with distorted
importance, prejudiced the opposing party’s case, or precluded the
opposing party from meeting the evidence.” Id. at 510-11.
The district court found that the Government
inadvertently failed to admit the stipulations into evidence. The
Government had explained the stipulations to the jury and its
intention to use them during the opening statement. The district
court and both parties apparently failed to notice that the
stipulations had not been entered into evidence as an exhibit until
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Floyd’s counsel realized it the morning of the second Rule 29
motion. The Government had filed the stipulation in the district
court into the record, but inadvertently did not enter it as an
exhibit at trial. The district court did not abuse its discretion
when it found that the Government provided a reasonable explanation
for failing to present the evidence.
The parties stipulated to Floyd’s prior felony and the
interstate travel of the guns before the trial. This evidence was
material, relevant, admissible, and helpful to the jury as the
Government intended to rely on the stipulation to prove two out of
the three elements of the felon in possession counts. As Floyd had
agreed to the stipulation, reopening the Government’s case did not
prejudice Floyd or give the evidence distorted importance. The
district court did not abuse its discretion in allowing the
Government to reopen its case to admit the stipulated evidence and
did not err in denying Floyd’s motion for judgment of acquittal.
Floyd also contends the district court improperly
enhanced his sentence by using his prior convictions to conclude he
was an armed career criminal under U.S. Sentencing Guidelines
Manual § 4B1.4(a) (2004). Because Floyd did not raise this claim
below, we review for plain error. See United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). This court has ruled that the
nature and occasion of prior offenses are facts inherent in the
convictions and that the government does not have to allege prior
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convictions in the indictment or submit them to a jury as a
prerequisite for applying the armed career criminal enhancement.
United States v. Thompson, 421 F.3d 278, 285-87 (4th Cir. 2005).
The district court did not err when it used Floyd’s prior
convictions in calculating his sentence.
To the extent Floyd argues that the district court’s
treatment of the sentencing guidelines as mandatory requires
resentencing, this claim also fails. Although Floyd is correct
that the district court erred in treating the guidelines as
mandatory, see Hughes, 401 F.3d at 547-48, we have held that in the
plain error context, the error of sentencing under the mandatory
guidelines regime does not warrant a presumption of prejudice, nor
is it a structural error. United States v. White, 405 F.3d 208,
224 (4th Cir. 2005). Nothing in the record suggests the error in
applying the guidelines as mandatory affected the court’s ultimate
determination of Floyd’s sentence. Accordingly, Floyd cannot
satisfy the prejudice requirement of the plain error standard.
Accordingly, we affirm Floyd’s conviction and 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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