                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 09-4322


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

JOHN WILSON PATTON,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Asheville.  Lacy H. Thornburg,
District Judge. (1:07-cr-00033-LHT-10)


Submitted:   September 28, 2011           Decided:   October 6, 2011


Before GREGORY, DUNCAN, and WYNN, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished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


Seth Neyhart, Chapel Hill, North Carolina, for Appellant.
Edward R. Ryan, United States Attorney, Mark A. Jones, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

           John     Wilson     Patton       appeals   his   conviction    and

sentences for conspiracy to possess with intent to distribute

fifty or more grams of cocaine base, in violation of 21 U.S.C.

§§ 841(a)(1), (b)(1)(A), and 846 (2006) (“Count One”), and for

possession of a firearm by a felon, in violation of 18 U.S.C.

§ 922(g)(1) (2006) (“Count Two”).             Patton filed a timely appeal,

arguing that (1) because Count Two recited Patton’s dismissed

May 20, 1998 charges as the basis of the § 922(g)(1) offense,

the indictment was fatally defective and there was insufficient

evidence at trial to sustain a conviction on Count Two; (2) the

district court erroneously classified him as a career offender;

and (3) the district court erred in failing to consider the

sentencing disparity between crack and powder cocaine, in light

of Kimbrough v. United States, 552 U.S. 85 (2007).                   For the

reasons   set    forth   below,   we    affirm   Patton’s   convictions   but

vacate his sentences and remand for resentencing in light of our

recent decision in United States v. Simmons, 649 F.3d 237 (4th

Cir. 2011) (en banc).

           Patton first argues that the indictment suffered from

a constructive amendment at trial.            In support of this claim, he

observes that Count Two of the indictment recites his May 20,

1998   charges    as     the   basis    for    the    § 922(g)(1)   felon-in-

possession offense.        As the Government conceded at sentencing,

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however,       Patton    had       never      been       convicted        of     these     charges;

instead, they had been dismissed.                        Despite the fact that Patton

had    been    previously         convicted        of        several      other    felonies,       he

claims that these other prior felony convictions cannot have

served at       trial    as       the    basis     for        his   § 922(g)(1)        conviction

without       constructively            amending        the    indictment.            See    United

States v. Randall, 171 F.3d 195, 203 (4th Cir. 1999).                                        To the

extent that a constructive amendment occurs, it is error per se

and must be corrected on appeal even if the defendant did not

raise the issue below.                  United States v. Floresca, 38 F.3d 706,

714 (4th Cir. 1994) (en banc).

               While    it        is     true      that        a    variance         between      the

indictment      and     the       evidence      presented           at    trial      may    in   some

circumstances be fatal where the government chooses to word an

indictment more narrowly than is necessary, see Randall, 171

F.3d    at    208-10,    Patton          is   incorrect            that   any     such     variance

occurred in this case.                  Patton stipulated at trial that he “had

been    convicted       in    a    court      of       law    of    a    crime    punishable       by

imprisonment for a term exceeding one year . . . and that said

conviction occurred prior to October 29, 2006.”                                       Because the

jury relied on this generic stipulation to find that he had

committed a felony on May 20, 1998 and was therefore guilty of

the    particular       § 922(g)(1)           charge         recited      in   the    indictment,

Patton was not convicted “on charges other than those made in

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the indictment against him.”                     United States v. Foster, 507 F.3d

233, 242-43 (4th Cir. 2007).

               To    the    extent        that    Patton      asserts        that    there      was

insufficient         evidence       to    support      a    conviction        on    Count       Two,

given his erroneous stipulation with respect to the May 20, 1998

offense, his argument must fail.                      “Because a stipulation induces

the government not to offer evidence to prove the facts involved

in the stipulation, a defendant may not argue at trial or on

appeal that the stipulation is insufficient to prove beyond a

reasonable          doubt    the     facts       or    elements        to     which       he    has

stipulated.”          United States v. Muse, 83 F.3d 672, 679 (4th Cir.

1996); accord United States v. Harrison, 204 F.3d 236, 240 (D.C.

Cir. 2000); United States v. Reedy, 990 F.2d 167, 169 (4th Cir.

1993).     Because any error of proof was invited by Patton, see

United States v. Jackson, 124 F.3d 607, 617 (4th Cir. 1997), we

affirm his conviction on Count Two.

               Patton next urges that he was improperly designated as

a   career      offender          under    U.S.       Sentencing        Guidelines         Manual

(“USSG”)     § 4B1.1.         Because        Patton        did   not    raise       any    of   his

current arguments before the district court, this court’s review

is for plain error.               United States v. Olano, 507 U.S. 725, 732

(1993);    United       States      v.     Lynn,      592    F.3d    572,     577    (4th       Cir.

2010).     To establish plain error, Patton must show that “(1) an

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

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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).                       In the sentencing context,

an error affects substantial rights if the defendant can show

that the sentence imposed “was longer than that to which he

would otherwise be subject.”                    United States v. Washington, 404

F.3d    834,    849    (4th    Cir.    2005)        (internal      quotation      marks    and

citation omitted).

               USSG § 4B1.1(a)(3) requires that the defendant have

been convicted of at least two predicate felony offenses before

being   designated       a    career    offender           under   the    Guidelines.        A

felony, for purposes of § 4B1.1, is a crime “punishable by death

or imprisonment for a term exceeding one year.”                             USSG § 4B1.2,

cmt.    n.1.      In    this    case,    the         presentence     report       designated

Patton as a career offender under § 4B1.1 based on several prior

North    Carolina      convictions:         a       1993   marijuana       conviction      and

three 1998 cocaine convictions.                     Patton now maintains that each

of his 1998 cocaine convictions was not a felony for purposes of

USSG § 4B1.1(a)(3) because the maximum sentence that could be

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imposed on Patton for these convictions did not exceed one year.

See N.C. Gen. Stat. § 15A-1340.17(c)-(d) (setting out minimum

and    maximum        sentences     applicable           under      North      Carolina’s

structured sentencing regime); Appellant’s Br. at 7, 9-10.

            At    the     time     of    Patton’s           sentencing,       this    court

determined whether a prior conviction qualified as a felony for

purposes of USSG § 4B1.1 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 Patton’s appeal

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

in Simmons.       Simmons held that a prior North Carolina offense

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.                               See

also N.C. Gen. Stat. § 15A-1340.17(c)-(d) (2009) (setting forth

North Carolina’s structured sentencing scheme).

            Given      the   opacity     of       the   record     as   to    the    precise

characterization of Patton’s prior North Carolina convictions,

we    express    no    opinion    as     to       whether    his    prior     convictions

qualify as felonies for purposes of USSG § 4B1.1.                              In view of

Simmons, however, we vacate Patton’s sentences and remand the

case to the district court for resentencing on both Count One

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and Count Two, leaving the proper characterization of his prior

convictions     as   an   issue   to    be   determined     after   further      fact

finding by the district court. *             See United States v. Slade, 631

F.3d 185, 191 (4th Cir.), cert. denied, 131 S. Ct. 2943 (2011);

United States v. Diaz–Ibarra, 522 F.3d 343, 347 (4th Cir. 2008).

            Given     our   determination        that      this   case    must    be

remanded for resentencing, Patton’s arguments with respect to

the crack/powder sentencing disparity are moot.                   We indicate no

view as to whether the Fair Sentencing Act of 2010, Pub. L. No.

111–220, is retroactively applicable to a defendant in Patton’s

circumstances, leaving that determination in the first instance

to the district court.

            Accordingly, we affirm Patton’s conviction and vacate

his   sentences,     remanding    the    case   to   the    district     court    for

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




      *
       We of course do not fault the Government or the district
court for their reliance upon unambiguous circuit authority at
the time of Patton’s indictment and conviction.



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