                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-4426


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

CLEVO SHUFF,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:09-cr-00008-FDW-1)


Submitted:   December 30, 2011            Decided:   January 10, 2012


Before MOTZ, KING, and DUNCAN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Eric J. Foster, LAW OFFICE OF RICK FOSTER, Asheville, 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Unpublished opinions are not binding precedent in this circuit.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:

               Clevo Shuff was convicted after a jury trial of one

count of conspiracy to distribute and to possess with the intent

to distribute at least fifty grams of cocaine base and aiding

and abetting, in violation of 18 U.S.C. § 2 (2006), 21 U.S.C.A.

§ 841(b)(1)(A) (West 2006 & Supp. 2011), and 21 U.S.C. § 846

(2006) (count one), one count of possession with the intent to

distribute at least five grams of cocaine base and aiding and

abetting,       in       violation       of    18     U.S.C.       § 2     and      21    U.S.C.A.

§ 841(a),       (b)(1)(B)        (count       two),    and    one    count       of      using   and

carrying a firearm during and in relation to a drug trafficking

crime, in violation of 18 U.S.C. § 924(c) (2006) (count three).

The district court determined that Shuff was a career offender

under the U.S. Sentencing Guidelines Manual (“USSG”) (2009) and

subject        to    a     mandatory          life    sentence        under         21    U.S.C.A.

§ 841(b)(1)(A)            on    count    one     based       on    his     two      prior     North

Carolina state convictions for possession with the intent to

sell or deliver cocaine.                 The district court sentenced Shuff to

life in prison on count one, a concurrent term of 360 months’

imprisonment         on    count     two,      and    a   consecutive          term      of   sixty

months’        imprisonment         on    count       three.             On    appeal,        Shuff

challenges his convictions and his sentences on counts one and

two.      We    affirm         Shuff’s    convictions,            affirm      the   sentence      on



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count three, vacate the sentences on counts one and two, and

remand for resentencing.

            Shuff’s        first    claim       of     error      is   that     the     district

court     erred     in    failing        to     instruct       the      jury     on     multiple

conspiracies.            Because        Shuff       did     not    request       a      multiple

conspiracies instruction in the proceedings below or object to

the jury instructions as given, we review this claim for plain

error.       United       States        v.     Robinson,       627      F.3d     941,     953-54

(4th Cir. 2010).               To succeed under the plain-error standard,

Shuff must establish that the district court erred, that the

error was plain, and that the error affected his substantial

rights.     Id. at 954.          Even if Shuff makes this showing, however,

we retain discretion to deny relief and will not correct a plain

error    unless     not        correcting       the       error    “would      result      in   a

miscarriage of justice or would otherwise seriously affect the

fairness,         integrity        or         public        reputation         of       judicial

proceedings.”            Id.    (internal       quotation         marks,       citation,     and

alteration omitted).

            “A court need only instruct on multiple conspiracies

if   such   an    instruction       is        supported      by    the   facts.”          United

States v. Mills, 995 F.2d 480, 485 (4th Cir. 1993).                                  Thus, “[a]

multiple conspiracy instruction is not required unless the proof

at trial demonstrates that appellant[] [was] involved only in

separate     conspiracies          unrelated           to    the       overall        conspiracy

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charged     in    the    indictment.”           United    States        v.    Squillacote,

221 F.3d 542, 574 (4th Cir. 2000) (internal quotation marks and

emphases omitted).          We have previously explained “that a single

conspiracy exists[] when the conspiracy had the same objective,

it    had   the   same    goal,    the     same   nature,       the     same       geographic

spread, the same results, and the same product.”                             United States

v.    Jeffers,     570    F.3d     557,     567    (4th        Cir.    2009)        (internal

quotation marks and alteration omitted).                            After review of the

trial transcript, we conclude that sufficient evidence exists to

demonstrate that the drug-trafficking activities of Shuff and

his    co-conspirators         were      related        and     part     of     a     single,

overarching       conspiracy       during         the     time        charged        in   the

indictment.       The district court thus did not commit error—plain

or    otherwise—in       failing      to    instruct          the    jury     on     multiple

conspiracies.

             Shuff      also   argues      that    the    district           court   plainly

erred in failing to instruct the jury on the difference between

a drug conspiracy and a buyer-seller relationship.                              During the

pendency of the trial, Shuff had requested that the district

court issue a buyer-seller instruction to the jury.                                  However,

after the conclusion of the evidence, Shuff withdrew his request

that the district court issue the instruction, and the district

court complied.           Assuming without deciding that the district

court should have given a buyer-seller instruction, we conclude

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that    this    claim    is   barred   from    review    by    the    invited     error

doctrine.       United States v. Jackson, 124 F.3d 607, 617 (4th Cir.

1997)    (“The    invited     error    doctrine     recognizes        that    a   court

cannot be asked by counsel to take a step in a case and later be

convicted of error, because it has complied with such request.”

(internal quotation marks omitted)).                 Further, Shuff fails to

establish the presence of “extraordinary circumstances like an

apparent miscarriage of justice or doubt as to the integrity of

the judicial process” that would warrant our review of an error

invited by an appellant.               United States v. Hickman, 626 F.3d

756, 772 (4th Cir. 2010), cert. denied, 132 S. Ct. 469 (2011)

(internal quotation marks omitted).

               Next, Shuff argues that the district court erred in

informing the jury pool during the voir dire proceeding about a

legend    that    the    ghost    of   a   Confederate     soldier      haunted     the

courthouse.       Although we ordinarily would review for abuse of

discretion the manner in which the district court conducted the

jury     voir    dire,   United    States      v.   Hsu,      364    F.3d    192,   203

(4th Cir. 2004), because Shuff did not object to the court’s

telling of the legend, we review this claim for plain error

only.    Robinson, 627 F.3d at 953-54.

               After review of the record, we conclude that Shuff

fails to establish any plain error that affected his substantial

rights.     During the voir dire proceeding, when counsel for Shuff

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and the Government were deciding whether to exercise any strikes

against     potential          jurors,       the    district    court       gave      a    lengthy

discourse in which it described the history of the courthouse

and   the    land       on     which     it    was      situated.          As   part       of     the

narrative, the court mentioned that a building on the land had

been seized by the Confederacy in 1861 and that there existed a

legend      that        a     “Confederate          ghost”     roamed       the       courthouse

hallways.          In       Shuff’s    view,       it   was   error    for      the       court    to

mention the legend because, in so doing, the court necessarily

conveyed     to     the       jury    pool    that      “someone      or   something           [was]

watching and interested in the outcome” of the trial and that

the “desired outcome [of the trial was] not the freedom of a

black man.”         Shuff, however, fails to point to anything in the

record      that        would        support        these     imaginative          assertions.

Further, after a review of the transcript of the jury voir dire,

we are satisfied that no reasonable observer would conclude that

there was even the appearance that Shuff’s race played a role in

the proceeding.              See United States v. Kaba, 480 F.3d 152, 156-57

(2nd Cir. 2007).             This claim is therefore without merit.

             Finally, Shuff argues that the district court erred in

imposing     the        enhanced       mandatory         minimum      sentence            of    life

imprisonment on count one and in sentencing him as a career

offender on count two because the prior convictions on which

those sentences were based were not punishable by imprisonment

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for terms exceeding one year.                  A defendant is properly subject

to a mandatory minimum term of life imprisonment if he commits a

violation of 21 U.S.C.A. § 841(b)(1)(A) “after two or more prior

convictions       for    a     felony    drug       offense      have     become        final.”

21 U.S.C.A. § 841(b)(1)(A).                An offense does not qualify as a

“felony drug offense” unless it 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, mari[j]uana, anabolic steroids, or

depressant    or    stimulant          substances.”             21    U.S.C.A.       § 802(44)

(West Supp. 2011).            A defendant is properly designated a career

offender if: (1) he was at least eighteen years old at the time

he committed the instant offense; (2) the instant offense is a

felony crime of violence or controlled substance offense; and

(3) he “has at least two prior felony convictions of either a

crime   of   violence        or   a    controlled        substance      offense.”            USSG

§ 4B1.1(a).         An       offense    does       not    qualify       as    a     “crime    of

violence”    or    a     “controlled       substance        offense”          unless     it   is

“punishable    by       imprisonment      for       a    term    exceeding        one    year.”

USSG § 4B1.2(a).

             Shuff contends that, in light of this court’s en banc

decision     following         rehearing       in       United       States    v.     Simmons,

649 F.3d     237    (4th       Cir.     2011)       (en banc),         his     prior     state

convictions for possession with the intent to sell or deliver

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cocaine were not punishable by terms of imprisonment exceeding

one    year.       See N.C.         Gen.       Stat.         § 15A-1340.17(c)-(d)            (2009)

(setting forth minimum and maximum sentences applicable under

the    North    Carolina         Structured            Sentencing        Act).        When    Shuff

raised this argument in the district court, it was foreclosed by

our panel decisions in United States v. Simmons, 635 F.3d 140,

146 (4th Cir. 2011) (holding that, to determine whether a North

Carolina conviction for a crime is punishable by a prison term

exceeding       one    year,       a    court          is      to    “consider    the     maximum

aggravated sentence that could be imposed for that crime upon a

defendant with the worst possible criminal history” (internal

quotation marks and emphasis omitted)), and United States v.

Harp, 406 F.3d 242, 246 (4th Cir. 2005) (same).                                   The en banc

decision     in    Simmons       reversed          this        precedent,     holding        that    a

prior North Carolina offense is punishable by imprisonment for a

term   exceeding       one    year          only    if      the     particular   defendant          is

eligible     for      such   a     sentence         under         the   applicable      statutory

scheme, taking into account his criminal history and the nature

of his offense.         Simmons, 649 F.3d at 241-47.

               Applying      the       en    banc      decision         in   Simmons    here,       we

conclude after review of the state judgments that Shuff’s prior

North Carolina convictions for possession with the intent to

sell    or     deliver       cocaine         were        not      punishable     by    terms        of

imprisonment exceeding one year.                         The offenses were both class H

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felonies, and the state judgments reveal that Shuff had a prior

record in levels II and III and was sentenced in the presumptive

range for each offense.      Under the North Carolina Structured

Sentencing Act, Shuff could not have been imprisoned for terms

exceeding one year for his prior convictions.    N.C. Gen. Stat.

§ 15A-1340.17(c)-(d).   The convictions were therefore not proper

predicates for purposes of 21 U.S.C.A. § 841(b)(1)(A) or the

career offender Guideline.

          Accordingly, we affirm Shuff’s convictions.   We vacate

Shuff’s life sentence on count one and the 360-month sentence on

count two, and we remand the case to the district court for

resentencing.   Shuff does not challenge his 60-month sentence on

count three, and we therefore affirm it.   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 IN PART,
                                                 VACATED IN PART,
                                                     AND REMANDED




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