                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 15-4081


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DERRICK DESHAWN LEE, a/k/a Derrick Deshaune Lee,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.   William L. Osteen,
Jr., Chief District Judge. (1:14-cr-00196-WO-1)


Submitted:   August 31, 2015                 Decided:    August 11, 2016


Before GREGORY,   Chief   Judge,    and   AGEE   and    KEENAN,   Circuit
Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Louis C. Allen, Federal Public Defender, Kathleen A. Gleason,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.    Ripley Rand, United States Attorney, Kyle D.
Pousson, Assistant United States Attorney, Greensboro, North
Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       Derrick Deshawn Lee appeals his conviction and 200–month

sentence    for     being   a   felon   in    possession    of    ammunition,      in

violation of 18 U.S.C. § 922(g)(1) (2012).                 Lee argues that the

district    court     constructively      amended   the     indictment       in    its

instructions to the jury and that it was required to submit to

the jury the question of whether he had three prior violent

felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e) (2012).          We ordered supplemental briefing regarding the

effect of Johnson v. United States, 135 S. Ct. 2551, 2563 (2015)

(invalidating        ACCA’s        residual    clause),      on     Lee’s         ACCA

enhancement.        We affirm Lee’s conviction, vacate Lee’s sentence,

and remand for resentencing without the ACCA enhancement.

       We   first    address    Lee’s    claim    that     the    district    court

constructively amended the indictment.               The indictment charged

Lee with possessing “approximately ten rounds” of ammunition.

Three of these rounds were found in Lee’s pocket while the rest

were   found   in     a   nearby    firearm.     During     deliberations,        the

jurors inquired whether they could convict Lee of possessing

only three rounds.            Over Lee’s objection, the district court

answered that they could, as long as they unanimously agreed

regarding which rounds Lee possessed.                Lee contends that this

instruction constructively amended the indictment.



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       “We review the correctness of a jury instruction regarding

the     elements      of   an     offense,”       including        claims    that    the

challenged      instruction       constructively         amended    the     indictment,

“de novo, as a question of law.”                 United States v. Ali, 735 F.3d

176,    186    (4th    Cir.     2013).      A    district     court    constructively

amends an indictment when it, “through its instructions to the

jury,    . . .       broadens    the     bases    for    conviction     beyond      those

charged in the indictment.”                United States v. Allmendinger, 706

F.3d 330, 339 (4th Cir. 2013).                    However, when the indictment

alleges multiple facts that could each independently establish

an element of the offense, the jury may properly convict based

on any of those facts.            United States v. Robinson, 627 F.3d 941,

958 (4th Cir. 2010).

       The indictment alleged that Lee possessed approximately ten

rounds of ammunition.             Because a finding that he possessed any

of these rounds could independently establish that he possessed

ammunition, we conclude that the jury was permitted to convict

based    on    its    unanimous     finding      that    he   possessed      the    three

rounds that were recovered from his pocket.                        Cf. Allmendinger,

706    F.3d    at    339-40     (finding    no    constructive        amendment     where

Government “proved a more narrow conspiracy than was charged”).

Accordingly, we affirm Lee’s conviction.

       We     next    consider    whether        the    district    court    erred     by

applying the ACCA.            Because Lee did not argue in the district

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court that his prior convictions were not violent felonies, we

review this issue for plain error.            United States v. Fuertes,

805 F.3d 485, 497 (4th Cir. 2015), cert. denied, 136 S. Ct. 1220

(2016).     To demonstrate plain error, Lee “must show: (1) there

was an error; (2) the error was . . . [plain]; [and] (3) the

error     affected   [his]   substantial     rights.”          Id.   (internal

quotation marks omitted).        “An error is plain if the settled law

of the Supreme Court or this circuit establishes that an error

has occurred.”       United States v. Carthorne, 726 F.3d 503, 516

(4th Cir. 2013).       In determining whether an error is plain, we

examine the state of the law at the time of our review, not at

the time of the district court’s decision.           Id.

     The ACCA applies only if the defendant “has three previous

convictions    . . .   for   a   violent    felony    or   a    serious   drug

offense, or both.”       18 U.S.C. § 924(e)(1).            Under Johnson, a

felony is considered “violent” only if it “has as an element the

use, attempted use, or threatened use of physical force against

the person of another” or “is burglary, arson, or extortion,

[or] involves use of explosives.”          18 U.S.C. § 924(e)(2)(B); see

Johnson, 135 S. Ct. at 2563.             The district court applied the

ACCA based upon three prior North Carolina felony convictions:




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(1) second-degree murder, (2) voluntary manslaughter, and (3)

attempted second-degree arson. 1

       Under North Carolina law, “[t]he elements of an attempt to

commit any crime are: (1) the intent to commit the substantive

offense, and (2) an overt act done for that purpose which goes

beyond mere preparation, but (3) falls short of the completed

offense.”           State v. Miller, 477 S.E.2d 915, 921 (N.C. 1996).

“The elements of [North Carolina] second-degree arson are: (1)

the willful and malicious burning (2) of the dwelling (i.e.,

inhabited) house of another; (3) which is unoccupied at the time

of the burning.”            State v. Scott, 564 S.E.2d 285, 293 (N.C. Ct.

App.       2002).      Because   attempted    second-degree      arson   does   not

require      that     the   defendant   commit   the   offense    of   arson,   but

instead requires that that offense not be completed, we conclude

that it does not constitute generic arson under the ACCA.                       Cf.

James v. United States, 550 U.S. 192, 197 (2007) (holding that

attempted burglary under Florida law did not constitute generic

burglary because Florida attempt statute required that attempt

       1
       Lee also has a prior North Carolina conviction for felony
common-law robbery.  The Government argues that this conviction
provides another ACCA predicate.   However, after the Government
filed its supplemental brief, we held in United States v.
Gardner, __ F.3d __, No. 14-4533, 2016 WL 2893881, at *5-8 (4th
Cir. May 18, 2016), that North Carolina common-law robbery is
not a valid ACCA predicate under Johnson. Accordingly, Gardner
precludes the use of Lee’s robbery conviction as an ACCA
predicate.



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not succeed), abrogated on other grounds by Johnson, 135 S. Ct.

at 2563.         Nor does attempted second-degree arson require the

use, attempted use, or threatened use of physical force against

the   person         of     another.        Accordingly,      we     conclude      that    the

district court plainly erred under Johnson in relying on Lee’s

attempted second-degree arson conviction as an ACCA predicate.

We need not decide whether the district court plainly erred in

relying on Lee’s murder and manslaughter convictions as ACCA

predicates because even if these predicates are not implicated

by Johnson, they provide only two of the three violent felonies

required for an enhancement under the ACCA. 2

      Although            the    district    court       correctly      applied    the    ACCA

under     the    law        that   existed    at    the    time    of    sentencing,       this

decision        is    plainly       erroneous       in    light    of   Johnson     and    its

progeny.             This       error   affected     Lee’s    substantial         rights    by

increasing his statutory term of imprisonment from a maximum of

10 years to a minimum of 15 years.                        See 18 U.S.C. § 924(a)(2),

(e) (2012).               Accordingly, we affirm Lee’s conviction, vacate

Lee’s sentence, and remand for resentencing without the ACCA

enhancement.           We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

      2Because we hold that the ACCA is inapplicable, we do not
reach Lee’s argument that the district court erred by failing to
submit his prior convictions to the jury.



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before   this   court   and   argument   would   not   aid   the   decisional

process.

                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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