United States v. Floyd, 4th Cir. (2005)

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
filed these stipulations with the district court.
They
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
judgment
of
acquittal.
Floyd
argued
that
the
Government had failed to introduce the stipulations into evidence.

The district court denied Floyds 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 courts decision to allow a party to reopen
its case is reviewed for abuse of discretion.

Abbas, 74 F.3d 506, 510 (4th Cir. 1996).
- 2 -
United States v.
Floyd also claims the
district court erred when it denied his motion for a judgment of

acquittal because the evidence in the stipulations was not properly
admitted. The courts 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

Abbas, 74 F.3d at 510.
district courts sole discretion.
When
reviewing whether the district court abused its discretion in

ruling on a partys 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 partys case, or precluded the
opposing party from meeting the evidence.
The
district
court
found
Id. at 510-11.
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.
court
and
both
parties
apparently
failed
to
The district
notice
that
the
stipulations had not been entered into evidence as an exhibit until
- 3 -
Floyds 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 Floyds 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 Governments case did not

prejudice Floyd or give the evidence distorted importance.
The
district
the
court
did
not
abuse
its
discretion
in
allowing
Government to reopen its case to admit the stipulated evidence and

did not err in denying Floyds 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
- 4 -
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
Floyds
prior
convictions in calculating his sentence.

To the extent Floyd argues that the district courts
treatment
of
the
sentencing
guidelines
resentencing, this claim also fails.

that
the
district
court
erred
in
as
mandatory
requires
Although Floyd is correct

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.
224 (4th Cir. 2005).
United States v. White, 405 F.3d 208,
Nothing in the record suggests the error in
applying the guidelines as mandatory affected the courts ultimate

determination of Floyds sentence.
Accordingly, Floyd cannot
satisfy the prejudice requirement of the plain error standard.

Accordingly, we affirm Floyds 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
- 5 -

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

Before WILKINSON, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Thomas P. McNamara, Federal Public Defender, Stephen C. Gordon,

Unpublished opinions are not binding precedent in this circuit.

Finding no reversible error, we affirm.

Prior to trial, Floyd and the Government stipulated that

closed its case without entering the stipulations into evidence.

Government had failed to introduce the stipulations into evidence.

The district court also allowed the Government

to reopen its case to submit the stipulations into evidence.

A district courts decision to allow a party to reopen

its case is reviewed for abuse of discretion.

Floyd also claims the

district court erred when it denied his motion for a judgment of

United States v. Gallimore, 247 F.3d 134, 136

(4th Cir. 2001).

decision to allow the Government to reopen its case is within the

district courts sole discretion.

reviewing whether the district court abused its discretion in

inadvertently failed to admit the stipulations into evidence.

Government had explained the stipulations to the jury and its

stipulations had not been entered into evidence as an exhibit until

Floyds counsel realized it the morning of the second Rule 29

The Government had filed the stipulation in the district

court into the record, but inadvertently did not enter it as an

The district court did not abuse its discretion

when it found that the Government provided a reasonable explanation

This evidence was

material, relevant, admissible, and helpful to the jury as the

agreed to the stipulation, reopening the Governments case did not

Government to reopen its case to admit the stipulated evidence and

enhanced his sentence by using his prior convictions to conclude he

Because Floyd did not raise this claim

This court has ruled that the

nature and occasion of prior offenses are facts inherent in the

convictions in the indictment or submit them to a jury as a

convictions in calculating his sentence.

resentencing, this claim also fails.

Although Floyd is correct

United States v. White, 405 F.3d 208,

Nothing in the record suggests the error in

applying the guidelines as mandatory affected the courts ultimate

Accordingly, Floyd cannot

satisfy the prejudice requirement of the plain error standard.

contentions are adequately presented in the materials before the

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