UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.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

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-inpossession offense. As the Government conceded at sentencing, 

, 649 F.3d 237 (4th 

Cir. 2011) (en banc).
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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.*

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.

 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).

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.