                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                              No. 13-4364


UNITED STATES OF AMERICA,

                 Plaintiff – Appellee,

          v.

GERARD FENNER,

                 Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville.    W. Earl Britt,
Senior District Judge. (4:12-cr-00115-BR-1)


Submitted:   May 14, 2014                        Decided:   June 6, 2014


Before AGEE and     FLOYD,   Circuit   Judges,   and   HAMILTON,   Senior
Circuit Judge.


Vacated and remanded by unpublished per curiam opinion.


Mark R. Sigmon, GRAEBE HANNA & SULLIVAN, PLLC, Raleigh, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Joshua L. Rogers, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

            Gerard     Fenner       appeals       from    the     seventy-eight-month

sentence imposed for being a felon in possession of a firearm

and ammunition, in violation of 18 U.S.C. §§ 922(g), 924 (2012).

On appeal, he challenges the district court’s calculation of his

criminal history score.              At sentencing, Fenner agreed to drop

all   objections      to     the     Presentence         Report    (PSR),        with    the

exception of the application of a cross-reference to the crack

cocaine     Guidelines,       pursuant       to    U.S.        Sentencing    Guidelines

Manual    §§ 2K2.1,    2X1.1       (2012).        In     exchange,    the    Government

orally agreed that the cross-reference need not be applied in

order to calculate a reasonable sentence.                       The parties mutually

agreed to recommend a 78-month sentence to the court.                            The court

granted the objection and imposed the 78-month sentence.                                   We

vacate and remand for resentencing.

            Fenner     argues        that     that       the    calculation        of    his

criminal    history        points    should       be     reexamined       under     United

States v.    Davis,    720    F.3d     215,      216,    219-20    (4th     Cir.    2013),

which held that a consolidated sentence for separate robberies

was   a    single     sentence       under       North     Carolina       law,     thereby

precluding application of the career offender Guideline.                                Davis

issued    after     Fenner    was    sentenced.           Fenner    argues       that    his

criminal history category of VI is no longer valid after Davis,

because    he   received      only    a     single      sentence    on    the     multiple

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charges that were consolidated by the state court in a judgment

entered January 5, 2004.          Thus, after Davis, the state charges

that were resolved by the January 5, 2004 consolidated judgment

may be counted as only one prior sentence.

            Fenner    argues    that    the   district    court     committed   a

second scoring error, as well, citing United States v. Martin,

378 F.3d 353 (4th Cir. 2004).           The PSR revised at sentencing was

adopted by the district court and assessed two criminal history

points for an assault inflicting serious injury with an offense

date of June 23, 2008.           Fenner had been found guilty of the

offense and served ninety-one days in custody.                 At the time of

the PSR and sentencing, this conviction was “on appeal” from

North    Carolina    state   district    court   to    superior     court.    The

misdemeanor assault charge was dismissed during Fenner’s appeal

to the superior court.         We have held that any sentence on appeal

from North Carolina state district court to the superior court

should    receive    one     criminal    history      point,   as    a   sentence

“totally . . . stayed” under USSG § 4A1.2(a)(3).                    Martin, 378

F.3d at 358.

            Fenner did not object below to either of these scoring

issues; therefore, we review his sentencing arguments for plain

error.     United States v. Lynn, 592 F.3d 572, 577 (4th Cir.

2010).     An error is plain when it is clear or obvious, and

affects substantial rights.        Id.      Even if the law at the time of

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sentencing is “settled and clearly contrary to the law at the

time of appeal,” an error need only be “plain” at the time of

appellate review.           Johnson v. United States, 520 U.S. 461, 468,

(1997).       Thus, even though the Davis error was not clear to the

district court at the time of Fenner's sentencing — in fact, it

was settled that the district court was correct at that time —

it is now clear and obvious that the district court erred in

counting the consolidated sentence as separate sentences.

               To establish whether the Davis error affected Fenner’s

substantial       rights,        he    must       show      that    the    error    actually

affected        the   outcome         of    the        proceedings,       i.e.,    that    his

“sentence was longer than that to which he would otherwise be

subject.”        United States v. Angle, 254 F.3d 514, 518 (4th Cir.

2001).        Fenner has demonstrated that, due to the Davis error,

his Guidelines range would have been lower had the consolidated

sentence been counted as a single sentence.

               Even     when     plain     error       is   established,      an   appellate

court may correct the error only if “not doing so would result

in a miscarriage of justice, or would otherwise seriously affect

the     fairness,       integrity          or     public     reputation       of    judicial

proceedings.”           United States v. Whitfield, 695 F.3d 288, 303

(4th     Cir.     2012)     (internal           quotation      marks      omitted),       cert.

denied, 133 S. Ct. 1461 (2013).                       We conclude that the sentencing

error    at     issue     here    meets         this    standard.         Accordingly,     the

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district    court     plainly   erred   by   miscalculating   the    criminal

history score as it did not have the benefit of Davis.

            We vacate the sentence in its entirety and remand for

new sentencing proceedings in light of Davis. *               We express no

opinion    on   the   appropriate   sentence.     We   dispense     with   oral

argument because the facts and legal contentions are adequately

presented in the materials before this court and argument would

not aid the decisional process.

                                                       VACATED AND REMANDED




     *
       In view of our disposition, we need not address whether
there was plain error or waiver of the claim challenging
calculation of criminal points related to the sentence on appeal
to state superior court.



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