                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT                      FILED
                        ________________________          U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                              September 15, 2006
                               No. 04-13983                  THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                      D. C. Docket No. 93-14029-CR-JIC

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                    versus

JOHN N. VERPORTER,

                                                           Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                            (September 15, 2006)

Before ANDERSON, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     John Verporter appeals his 210-month sentence imposed for being a
convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Verporter’s 1995 sentence was enhanced under the Armed Career Criminal Act

(“ACCA”), 18 U.S.C. § 924(e). Verporter appealed this conviction, and we

affirmed the district court. The district court later granted his motion to vacate

pursuant to 28 U.S.C. § 2255 and re-sentenced him under the then-mandatory

sentencing guidelines.

      In this appeal after resentencing, Verporter makes basically two arguments.

First, he makes an argument based upon Shepard v. United States, 125 S.Ct. 1254

(2005). The gist of his argument is that the district court considered impermissible

sources in determining that his prior convictions qualified for the ACCA

enhancement, namely, qualitative facts about the crimes rather than the mere fact of

the prior convictions. Second, he argues that the district court committed statutory

Booker 1 error by sentencing him pre-Booker without recognizing that the

Guidelines were in fact advisory.2

      Turning first to Verporter’s Shepard claim, we conclude that the claim is

without merit because the record contains no evidence that the district court in fact

relied upon impermissible sources. Indeed, at the first sentencing, on May 8, 1995,

       1
              United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005).
       2
              To the extent that Verporter argues that Almendarez-Torres v. United States, 118
S.Ct. 1219 (1998), is no longer good law, we reject the argument as foreclosed by Supreme
Court and Eleventh Circuit precedent.

                                              2
the defense expressly stipulated “that Verporter committed these burglaries, and

that these burglaries of an occupied dwelling do qualify as the predicate, the violent

offense which would be a predicate toward armed career criminal treatment.” 1995

Sentencing Hearing at 3. Verporter did argue at that sentencing, and in the first

appeal, that the three predicate crimes occurred sufficiently close together in time

that they should be treated as a single crime, or at most no more than two. The

judgments of a conviction with respect to those prior crimes were apparently before

the sentencing court, and apparently indicated that they occurred on separate dates.

Moreover, both the prosecution and the defense agreed that they did occur on

separate dates and involved separate dwellings. The sentencing court rejected the

argument, and applied the ACCA enhancement. There is no evidence that the

sentencing court relied upon any impermissible sources. That decision was

affirmed in Verporter’s first appeal. At Verporter’s resentencing on July 16, 2004,

no challenge was asserted based upon the Shepard rationale. Indeed, in the

defendant’s own testimony at that resentencing, he reiterated his belief that the three

crimes occurred over a period of two days. However, he expressly acknowledged:

“But that’s another issue. I guess it got shot down, so I won’t go there.” 2004

Resentencing at 32. There was no other mention of the ACCA enhancement. Thus,

the admission by the defense at the first sentencing that the crimes did qualify as



                                           3
predicates toward armed career criminal treatment remained uncontested. There

being no evidence that the district court, in applying the ACCA enhancement, relied

upon impermissible sources, we readily conclude that there is no merit to

Verporter’s Shepard argument.

      Turning to Verporter’s argument that the district court committed statutory

Booker error in resentencing him, we note that the government has conceded error

in this regard, conceded that it bears the burden of proving that the error was not

harmless, and has conceded that it cannot satisfy that burden.

      For the foregoing reasons, we reject Verporter’s Shepard argument, but we

vacate his sentence on the basis of the conceded statutory Booker error, and

remanded the case for resentencing in a manner not inconsistent with this opinion.

      VACATED and REMANDED.




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