           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         January 23, 2008

                                       No. 06-11300                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

LAWRENCE JAMES TAYLOR

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:06-CR-95-ALL


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant Lawrence Taylor challenges the propriety of his sentence,
alleging that 1) the district court improperly enhanced his sentence under the
Armed Career Criminal Act and 2) the district court imposed an unreasonable
sentence. Further, Taylor brings a collection of other challenges to his sentence
and conviction, but he concedes that those claims are foreclosed by precedent.
Finding Taylor’s arguments without merit, we AFFIRM the district court on all
grounds.


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                  No. 06-11300


                     I. Factual and Procedural History
      A grand jury indicted Defendant Lawrence James Taylor (“Defendant”) on
one charge of being a convicted felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(e). Taylor filed a motion to dismiss the indictment
on the basis that these statutes were unconstitutional, but he acknowledged that
his arguments were foreclosed under this court's case law, and he raised the
issue only to preserve it for possible further review. The district court denied
the motion, and with the Government's written consent, Taylor conditionally
pleaded guilty to the charge against him while preserving his right to challenge
the indictment.
      Taylor’s presentencing report (“PSR”) determined that Taylor was an
Armed Career Criminal (“ACC”) and assigned him a base offense level of 33
pursuant to U.S.S.G. § 4B1.1. This ACC designation was based on Taylor's two
prior burglary convictions, which were deemed violent felonies; his conviction for
possession of cocaine, which was a serious drug offense; and his conviction for
injury to a child, which qualified as a crime of violence. Taylor received no
adjustments to his offense level and qualified for a criminal history category of
VI. Thus, his guidelines sentencing range was 235-293 months in prison and
three-to-five years of supervised release.
      Taylor objected to the PSR, arguing that his cocaine conviction did not
qualify as a serious drug offense, and though the Government ultimately agreed,
the change in classification of the drug conviction did not change Taylor's status
as an ACC or his offense level. Additionally, Taylor contended that the statutory
maximum sentence for his offense was ten years, but he conceded that this
argument was foreclosed by United States v. Almendarez-Torres, 523 U.S. 224
(1998). Taylor also argued that he had accepted responsibility for his offense
and should have received a corresponding adjustment to his offense level.

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Further, he contended that a sentence below the guidelines range was proper
and reasonable based on the factors given in 18 U.S.C. § 3553. Finally, Taylor
objected to his ACC classification, arguing that it was improper because the
Government could not show that his two burglary offenses occurred on different
occasions.
      The district court sustained Taylor’s objection concerning the drug offense
and denied the remaining objections. With respect to Taylor's ACC argument,
the district court noted that the indictments and the judgments for the two
burglary convictions established that the two offenses took place nine months
apart.
      The district court sentenced Taylor to serve 260 months in prison and a
four-year term of supervised release. Taylor filed a timely notice of appeal,
again challenging the applicability of his ACC enhancement and the
reasonableness of his sentence and raising a variety of foreclosed claims to
preserve them for further review.


                          II. ACCA Enhancement


      A. Standard of Review
      Legal conclusions underlying a district court's application of the Armed
Career Criminal Act are reviewed de novo. United States v. Stone, 306 F.3d 241,
243 (5th Cir. 2002). The district court's factual findings will be upheld unless
they are clearly erroneous. United States v. Barlow, 17 F.3d 85, 89 (5th Cir.
1994).
      B. Discussion
      On appeal, Taylor challenges his sentence enhancement under the Armed
Career Criminal Act (“ACCA”), alleging that the district court violated Shepard
v. United States, 544 U.S. 13, 24-26 (2005), and United States v. Fuller, 453 F.3d

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274, 278 (5th Cir. 2006), by applying the ACCA enhancement to his sentence.
Specifically, Defendant asserts that nothing in the Shepard-approved
documents, the only documents that the district court may consult in applying
the ACCA, supported the district court's conclusion that the offenses occurred
on different occasions.
       The ACCA subjects a defendant convicted under 18 U.S.C. § 922(g) to a
minimum sentence of 15 years if he has three prior convictions for “a violent
felony or a serious drug offense, or both, committed on occasions different from
one another.” 18 U.S.C. § 924(e)(1). To establish that an ACCA enhancement
is proper, the Government bears the initial burden of establishing the
defendant's prior convictions. See Barlow, 17 F.3d at 89. However, “[o]nce the
Government establishes the fact of a prior conviction based upon a guilty plea,
the defendant must prove the invalidity of the conviction by a preponderance of
the evidence.”1 Id. Ultimately, the district court must determine whether the
ACCA applies and in doing so is generally limited to consulting the following
sources: 1) the statutory definition, 2) the charging document, 3) the written plea
agreement, transcript of the plea colloquy, or prior-offense judgment, and 4) any



       1
         This approach accords with other circuits' applications of the ACCA burden of proof.
While all circuits to address the issue note that the Government carries an initial burden, they
also place the onus on defendants to prove that prior offenses are not separate. See United
States v. Phillips, 149 F.3d 1026, 1033 (9th Cir. 1998), cert. denied, Phillips v. United States,
526 U.S. 1052 (1999) (“The Government carried its burden of proving by a preponderance of
the evidence that Phillips committed three predicate offenses ‘on occasions different from one
another.’ It did so by submitting unchallenged, certified records of conviction and other clearly
reliable evidence. . . . The burden then shifted to Phillips to challenge the Government's
evidence.”) (internal citations omitted); United States v. Cowart, 90 F.3d 154, 159 (6th Cir.
1996) (holding that once the Government has shown that defendant has prior convictions, the
burden shifts to the defendant to demonstrate that the predicate crimes were committed as
part of a single common scheme or plan); United States v. Hudspeth, 42 F.3d 1015, 1019 n.6
(7th Cir. 1994) (holding that a certified record of conviction satisfies the Government's burden
and the defendant must then establish that the prior convictions occurred on one occasion);
United States v. Redding, 16 F.3d 298, 302 (8th Cir. 1994) (same); United States v. Ruo, 943
F.2d 1274, 1276 (11th Cir. 1991) (same).

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explicit finding by the trial court to which the defendant assented. See Fuller,
453 F.3d at 279 (citing Shepard, 544 U.S. at 16, 24-26).
      According to these procedures, the district court's imposition of the ACCA
enhancement was proper in Taylor's case. The Government met its initial
burden by providing reliable evidence of past convictions. Defendant then bore
the burden of proving that the convictions did not support an ACCA
enhancement. Defendant argued that the ACCA enhancement was improper
because ambiguity might exist regarding the date of the offenses, but Defendant
failed to introduce any evidence, much less a preponderance, that his offenses
occurred simultaneously. Defendant’s only arguments attempted to introduce
uncertainty as to the date of the offenses because the indictments say “on or
about.” Thus, Defendant could not meet his Barlow burden and demonstrate by
a preponderance of the evidence that his prior convictions are invalid for
consideration under the ACCA. Based on the evidence presented, the district
court consulted only Shepard-approved sources, concluded from the indictments
and state court judgments that Defendant’s offenses occurred on different
occasions, and applied the ACCA enhancement. Given Defendant's failure to
offer evidence to the contrary, the district court's findings were proper.
      This holding is consistent with our decision in Fuller, though the Fuller
court never addressed the Barlow standard. Fuller, who had been convicted of
two burglaries taking place on the same day, introduced evidence that “he and
a friend entered two different buildings (or trailers) simultaneously,” Fuller, 453
F.3d at 278, and based on this evidence as well as the possibility of accomplice
liability, the Fuller court concluded that “we cannot determine as a matter of law
that the burglaries occurred on different occasions.” Id. at 279. Thus, the Fuller
court implicitly found that Fuller had carried his burden of proof by supplying
some evidence that his offenses did not occur on different occasions.



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      Unlike in Fuller, Defendant here provides no evidence that his burglaries
occurred simultaneously; Defendant merely attempts to introduce ambiguity.
Thus, while Fuller succeeded in carrying his burden of proof under Barlow,
Defendant fails to meet his burden, and the district court’s ACCA enhancement
was proper.


                      III. Reasonableness of Sentence


      A. Standard of Review
      This court reviews guidelines sentences for reasonableness in light of the
factors set forth in § 3553(a). United States v. Mares, 402 F.3d 511, 519-20 (5th
Cir. 2005). In reviewing for reasonableness, an appellate court “merely asks
whether the trial court abused its discretion .” Rita v. United States, 127 S . Ct.
2456, 2462-63 (2007). A district court's sentencing decision is entitled to great
deference. Gall v. United States, 128 S . Ct. 586, 597-98 (2007) (fact that
appellate court might reasonably impose different sentence is insufficient
justification for reversal of district court). In fact, this court has held that
sentences within a properly calculated guideline range should be afforded a
rebuttable presumption of reasonableness. See United States v. Alonzo, 435 F.3d
551, 554 (5th Cir. 2006).       The Supreme Court upheld this rebuttable
presumption in Rita v. United States, 127 S. Ct. at 2462.
      When analyzing the reasonableness of a sentence, this court considers if
the sentence: 1) fails to “account for a factor that should have received
significant weight,” 2) gives “significant weight to an irrelevant or improper
factor,” or 3) “represents a clear error of judgment in balancing the sentencing
factors.” United States v. Nikonova, 480 F.3d 371, 376 (5th Cir. 2007). A
defendant who wishes to show that his within-guidelines sentence was
unreasonable must establish that his sentence “falls so far afoul” of one of these

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factors “as to constitute a clear error in the court's exercise of its broad
sentencing discretion.” Id.


      B. Discussion
      Taylor argues that two unrelated factors make his sentence unreasonable.
First, he argues that he should have received an adjustment for acceptance of
responsibility and that his sentence was an unreasonable four to six years longer
because he did not receive the adjustment. Second, Taylor argues that, despite
his guilty plea, he is actually innocent of the injury to a child offense to which he
pleaded; he does not challenge the conviction but does assert that, in light of his
factual innocence, the district court was unreasonable in declining to give him
a more lenient sentence.
      Nothing indicates that Taylor's sentence was unreasonable. The district
court adopted the PSR, considered proper § 3553 factors, and gave a sentence
midway in the guideline range. The record demonstrates none of the Nikonova
factors for rebutting the presumption of reasonableness, and Taylor has made
no showing that his sentence is the result of “a clear error in the court's exercise
of its broad sentencing discretion.” See Nikonova, 480 F.3d at 376. Thus, Taylor
has not rebutted the presumed reasonableness of his guidelines sentence.


                                IV. Other Issues
      To preserve his claims for further review, Taylor raises a number of issues
that he concedes are foreclosed by precedent.
      First, Taylor argues that his enhanced sentence under § 924(e) is
unconstitutional because the dates of his prior convictions were not alleged in
the indictment, proven beyond a reasonable doubt to a jury, or admitted by him.
For this proposition, he cites Apprendi v. New Jersey, 530 U.S. 466 (2000);
United States v. White, 465 F.3d 250, 254 (5th Cir. 2006); and United States v.

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Stone, 306 F.3d 241, 243 (5th Cir. 2002). However, “Section 924(e)(1) does not
create a separate offense but is merely a sentence enhancement provision.”
White, 465 F.3d at 254 (quoting Stone, 306 F.3d at 243) (internal brackets and
quotation marks omitted).        Consequently, “neither the statute nor the
Constitution requires a jury finding on the existence of the three felony
convictions required for the enhancement.” Id. (quoting Stone, 306 F.3d at 243).
Moreover, “[t]he data necessary to determine the separateness of [a defendant's
crimes] is [sic] inherent in the fact of prior convictions and do not have to be put
before a jury.” Id. (internal citation and quotation marks omitted). This
argument is, as Taylor concedes, foreclosed.
      Taylor also argues that the sentencing enhancement provisions of § 924(e)
are unconstitutional under Apprendi and that his prior convictions are elements
of the offense that must be proven to a jury. Taylor concomitantly argues that
his plea was involuntary because he was not admonished that “the prior offense
enhancement provisions of 18 U.S.C. § 924(e) stated essential offense elements
that Taylor had the right to have the Government prove, and a jury find, beyond
a reasonable doubt.” However, in Almendarez-Torres, 523 U.S. at 235, the Court
held that a prior conviction is a sentencing factor under 8 U.S.C. § 1326(b)(2) and
not a separate element of a criminal offense.         Apprendi did not overrule
Almendarez-Torres. See Apprendi, 530 U.S. at 489-90; see also United States v.
Dabeit, 231 F.3d 979, 984 (5th Cir. 2000) (noting that the Apprendi Court
expressly declined to overrule Almendarez-Torres). Further, in Blakely, the
Court reaffirmed its holding in Apprendi, that “‘[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.'” Blakely v. Washington, 542 U.S. 296, 301-02 (2004) (quoting
Apprendi, 530 U.S. at 490). Similarly, the Court in Booker applied its holding
to “[a]ny fact (other than a prior conviction).”      Booker, 543 U.S. at 244.

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Accordingly, Taylor's argument fails. See United States v. Guevara, 408 F.3d
252, 261 (5th Cir. 2005) (holding that “[c]areer offender status is not a
sentencing judge's determination of fact other than a prior conviction”), cert.
denied, 546 U.S. 1115 (2006).
      Finally, Taylor argues that the factual basis for the interstate commerce
element of his offense was insufficient to support his guilty plea conviction and,
alternatively, that § 922(g) is unconstitutional. He suggests that after United
States v. Lopez, 514 U.S. 549, 567 (1995), in which the Court held that the
Commerce Clause does not authorize Congress to criminalize the purely local
possession of a firearm within a school zone, two panels of this court have
reluctantly and erroneously upheld the constitutionality of § 922(g)(1). This
court previously rejected a Commerce Clause challenge to § 922(g) under Lopez,
stating, “‘the constitutionality of § 922(g) is not open to question.'” United States
v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001) (quoting United States v. DeLeon,
170 F.3d 494, 499 (5th Cir. 1999)).          The Daugherty court also refused to
reconsider the interstate commerce element of § 922(g)(1) in light of Morrison
and Jones, reasoning that those cases are distinguishable because a plain
jurisdictional element exists in § 922(g), and, as in the instant case, there was
stipulated evidence showing that the gun traveled in interstate commerce.
Daugherty, 264 F.3d at 518. “Neither Jones nor Morrison affects or undermines
the constitutionality of § 922(g).” Daugherty, 264 F.3d at 518.


                                  V. Conclusion
      For the reasons stated above, we AFFIRM Taylor’s sentence and conviction
on all grounds.




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