                                UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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