                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-5308


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JACKIE CLARK,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.          Richard L.
Voorhees, District Judge. (5:06-cr-00035-RLV-DCK-14)


Submitted:   October 25, 2011             Decided:   December 7, 2011


Before GREGORY, SHEDD, and KEENAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


John J. Cacheris, DOZIER, MILLER, POLLARD & MURPHY, LLP,
Charlotte, North Carolina, for Appellant.      Anne M. Tompkins,
United States Attorney, Richard Lee Edwards, Assistant United
States Attorney, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Jackie Clark (“Clark”) appeals his conviction by jury

and   the   subsequent        life   sentences       imposed          for    conspiring      to

manufacture and possess with intent to distribute at least 500

grams of a mixture containing methamphetamine, in violation of

21    U.S.C.    §§ 841(a)(1),        (b)(1)(A),          and    846     (2006),      and    for

persuading a minor to commit a federal drug crime, in violation

of 21 U.S.C. §§ 841 and 861 (2006).                      We affirm his convictions

but vacate his sentences and remand to the district court for

resentencing.



                                           I.     Trial

               On appeal, Clark asserts that the district court made

three errors           at his trial.            First, he contends that Kristen

Pilkenton’s      testimony      respecting         her     boyfriend’s           purchase   of

methamphetamine from Clark should have been excluded because the

consummation of the transaction occurred inside Clark’s tattoo

parlor,     where       she   was    not        present.         A      district      court’s

evidentiary       rulings      are    reviewed       for        abuse       of    discretion.

United States v. Caro, 597 F.3d 608, 633 (4th Cir. 2010).                                     A

trial     court’s      exercise      of    such     discretion          is       entitled   to

“substantial deference,” United States v. Myers, 589 F.3d 117,

123 (4th Cir. 2009), and will be upheld unless the court “acts

arbitrarily       or     irrationally,          fails      to    consider          judicially

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recognized        factors       constraining       its    exercise    of   discretion,

relies on erroneous factual or legal premises, or commits an

error of law.”           United States v. Delfino, 510 F.3d 468, 470 (4th

Cir. 2007).             Further, “[a]ny error, defect, irregularity, or

variance         that    does    not    affect      substantial      rights    must    be

disregarded.”            Fed. R. Crim. P. 52(a).               Erroneously admitted

evidence is harmless if a reviewing court is able to conclude,

“with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.”                          United States v.

Johnson, 587 F.3d 625, 637 (4th Cir. 2009) (quoting Kotteakos v.

United States, 328 U.S. 750, 765 (1946)).

             Our review of the record convinces us that any error

in   the    admission       of    the   challenged        statement    was     harmless.

Clark’s contention that the admission of her statement violated

his substantial rights is therefore without merit.                      Id. at 637.

             Second, Clark asserts that the district court should

have excluded the testimony of two Government witnesses, Jerry

Malone and Johnny Watson, for their failure to abide by the

sequestration           order    when     several        witnesses     began     sharing

information in the holding cell, during the trial.                           A district

court      has     three    options     for       addressing    a    violation    of    a

sequestration order.             United States v. Smith, 441 F.3d 254, 263

(4th Cir. 2006).            The court can: 1) sanction the witness for

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contempt; 2) ensure that the jury is aware of the violation

through cross-examination by counsel or through instructions by

the court; or 3) exclude all or part of the witness’ testimony.

United States v. Rhynes, 218 F.3d 310, 323 (4th Cir. 2000) (en

banc).       While this Court reviews the district court’s choice of

remedy       for   abuse    of   discretion,      Smith,       441    F.3d    at   263,

whichever remedy is ultimately employed must be proportional to

the   violation.           Rhynes,   218   F.3d   at    321.         Exclusion     of   a

witness’ testimony “is so severe that it is generally employed

only when there has been a showing that a party or a party’s

counsel caused the violation.”             United States v. Cropp, 127 F.3d

354 (4th Cir. 1997).

              Clark recognizes that the district court excluded the

testimony of two other Government witnesses for violating the

sequestration order, but claims that the court should also have

barred Malone and Watson from giving testimony against Clark.

The district court, however, conducted a lengthy voir dire of

each of the Government’s witnesses who were implicated in the

mid-trial holding cell discussions, and concluded that Malone

and Watson, unlike the witnesses whom it ultimately excluded,

did    not    engage   in     extensive    discussion      of    their       testimony.

Moreover, the district court allowed both Malone and Watson to

be    interrogated     on     cross-examination        about    the    pre-testimony

discussions between witnesses.                 Given the facts found by the

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district court, we decline to hold that its decision to employ a

lesser       remedy     than       exclusion             was     an    abuse        of     discretion.

Rhynes, 218 F.3d at 323.

               The    third        source       of       trial       error     alleged       by    Clark

asserts      that      the    prosecution’s               closing           arguments       improperly

mentioned Clark’s co-conspirators, vouched for the Government’s

witnesses, and suggested that defense witnesses were high on

drugs    while       testifying.              Because          he     did    not     object       to   the

closing      argument        at    trial,       this      Court’s           review    is    for    plain

error.       United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995);

United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993).                                               To

establish plain error, Clark must show that “(1) an error was

made;    (2)     the     error          is    plain;       and        (3)     the    error     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).

               A defendant’s due process rights are violated by the

prosecution’s         comments          if    (1)    the       prosecution’s             remarks       were

improper,       and     if        (2)    the       improper           remarks       prejudiced         the

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defendant’s     substantial      rights   to    such    a   degree     that    he    was

denied a fair trial.           United States v. Lighty, 616 F.3d 321, 359

(4th Cir. 2010) ; see also United States v. Wilson, 624 F.3d

640, 656-57 (4th Cir. 2010) (listing factors used to determine

the question of prejudice).

           We     have     thoroughly          examined       each     of      Clark’s

contentions      and     conclude       that,    even       assuming        that     the

prosecutor’s comments were improper, they did not deprive Clark

of a fair trial, given the relatively isolated nature of the

remarks, the substantial strength of the other evidence in the

case, and the court’s instructions to the jury.                        Wilson, 624

F.3d at 656-57.



                                  II.   Sentence

           With respect to his sentence, Clark contends that the

district   court       erred    in   determining       that    his     prior       North

Carolina convictions were felonies for the purposes of applying

the sentence enhancements in 21 U.S.C. § 841(b)(1)(A).                         Whether

the district court properly interpreted the term “felony drug

offense” as used in § 841(b)(1)(A) is a question of law that

this Court reviews de novo.             United States v. Burgess, 478 F.3d

658, 661 (4th Cir. 2007), aff’d, 553 U.S. 124 (2008); United

States v. Tucker, 473 F.3d 556, 560 (4th Cir. 2007).



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              Section 841(b)(1)(A) provides that a defendant shall

be sentenced to a mandatory term of life imprisonment if he

“commits a violation of this subparagraph or of section . . .

861 of this title after two or more prior convictions for a

felony drug offense have become final.”                 Id.    A “felony drug

offense” is

       an offense that is punishable by imprisonment for more
       than one year under any law of the United States or of
       a State or foreign country that prohibits or restricts
       conduct   relating    to    narcotic   drugs,  marihuana,
       anabolic    steroids,    or    depressant   or  stimulant
       substances.

21 U.S.C. § 802(44) (2006); Burgess v. United States, 553 U.S.

124, 129 (2008).

              Here, the district court predicated Clark’s mandatory

life sentence on the two prior North Carolina drug convictions

noticed in the Government’s 21 U.S.C. § 851 (2006) information.

At the time of Clark’s sentencing, this Court determined whether

a   prior   conviction       was   punishable    with   more   than   a   year’s

imprisonment     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    Clark’s   appeal   was

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

United States v. Simmons, 649 F.3d 237, 241 (4th Cir. 2011).

This Court held in Simmons that a prior North Carolina offense


                                        7
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.                                    Id.

at 247; see also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009)

(setting forth North Carolina’s structured sentencing scheme).

             Under     Simmons,         Clark’s          two     prior      North       Carolina

convictions     are       not       felonies       for     purposes      of     21    U.S.C.      §

841(b)(1)(A) because they were not punishable by more than a

year    of   incarceration.                 Both      of       Clark’s      North       Carolina

convictions     were        Class       I     felonies,         and      the     state        court

determined that he had a prior record level of IV.                                No findings

of     aggravation        or        mitigation       were        made.           Under        these

circumstances, the maximum possible sentence that Clark could

have    received     was    ten       months.        See       N.C.   Gen.      Stat.     §    15A-

1340.17(c)-(d).            Therefore,         we    hold      that    the      district       court

erred in concluding that Clark was subject to a mandatory life

sentence     under    §     841(b)(1)(A),           and       that    his      case     must     be

remanded for resentencing.

             Accordingly, we affirm Clark’s convictions and vacate

his    sentences,     remanding         the    case      to    the    district        court     for




                                                8
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




     *
       Although the fact that this case must be remanded for
resentencing obviates the necessity to rule at this time on
Clark’s claim that he was erroneously deemed a career offender
at sentencing, we note that, for purposes of career offender
status under the Guidelines, a “prior felony conviction” is a
conviction for an offense “punishable” by death or imprisonment
for a term exceeding one year, “regardless of the actual
sentence imposed.” USSG § 4B1.2, cmt. n.1.; see also McNeill v.
United States, 131 S. Ct. 2218, 2224 (2011) (a sentencing court
must consult the maximum term of imprisonment applicable to the
offense at the time of the defendant’s state conviction for that
offense).



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