UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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).
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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