                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                     February 7, 2006

                        _______________________                Charles R. Fulbruge III
                                                                       Clerk
                              No. 03-30815
                        _______________________

                       UNITED STATES OF AMERICA,

                                                      Plaintiff-Appellee,

                                  versus

                          WILLIAM SCOTT TATUM,

                                                     Defendant-Appellant.


             Appeal from the United States District Court
                 for the Western District of Louisiana
                        USDC No. 02-CR-50086-ALL


         ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, Chief Judge, and BENAVIDES, and CLEMENT, Circuit
Judges.

PER CURIAM:*

             William Scott Tatum pleaded guilty to possession of a

firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1).

After his guilty plea, the Government filed a notice of intent to

seek sentencing pursuant to the Armed Career Criminal Act (“ACCA”),

18 U.S.C. § 924(e).       Section 924(e) imposes a mandatory minimum

sentence of fifteen years, or one hundred eighty months, if a

defendant is found guilty of § 922(g)(1) and “has three previous

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


     *
            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opinion should not be published and is not precedent except under the limited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.
both, committed on occasions different from one another.”                     The

district court applied ACCA and sentenced Tatum to one hundred

eighty-eight months, pursuant to U.S.S.G. § 4B1.4.

            At sentencing, Tatum objected to the application of the

ACCA, arguing that whether or not his three previous convictions

were committed on different occasions is a fact that must be

determined by a jury. On direct appeal, we affirmed his conviction

and the application of ACCA, but modified his sentence to reflect

the   fifteen-year   minimum   term   that   Tatum    acknowledged       to   be

applicable, because he was not informed at his plea hearing that

his sentence could be greater than the fifteen-year mandatory

minimum.    See United States v. Tatum, No. 03-30815 (May 26, 2004).

            Tatum then filed a writ of certiorari with the Supreme

Court, which vacated and remanded for further consideration in

light of United States v. Booker, 125 S. Ct. 738 (2005).            See Tatum

v. United States, 125 S. Ct. 1013 (2005).                  We requested and

received   supplemental   letter   briefs    addressing      the    impact    of

Booker.

            The first step in analyzing Tatum’s claims is determining

if the district court committed error, and if so, what type of

error.    See United States v. Walters, 418 F.3d 461 (5th Cir. 2005)

(“This    court   differentiates   between   the     two    types   of   error

addressed in Booker.”) The court did err in sentencing Tatum under

a mandatory Guidelines regime, instead of an advisory regime, the

so-called Fanfan error.     See United States v. Valenzuela-Quevedo,

                                      2
407 F.3d 728, 732-33 (5th Cir 2005).          However, for reasons that

will soon become clear, the district court did not commit a Sixth

Amendment Booker error.

            As we have repeatedly held, nothing in Booker or Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), overruled

Almendarez-Torres v. United States, 523 U.S. 224 (1998).             See

United States v. Bonilla-Mungia, 422 F.3d 316, 318-19 (5th Cir.

2005).    Accordingly, a district court may continue to utilize past

convictions to enhance a defendant’s sentence without implicating

Booker.    In so doing, however, the district court is “generally

limited to examining the statutory definition, charging document,

written plea agreement, transcript of plea colloquy, and any

explicit factual finding by the trial judge to which the defendant

assented.”    Shepard v. United States, 125 S. Ct. 1254, 1257 (2005).

            Here, the district court utilized the Bill of Information

from Tatum’s guilty plea to determine that Tatum’s two burglary

convictions    constituted   two   separate   convictions.   The   court

referred to the Bill of Information in determining that Tatum

pleaded guilty to the simple burglary of the inhabited dwelling of

Cynthia Jones on February 21, 1995, and to the simple burglary of

the inhabited dwelling of Danny Fuller on February 22, 1995.       As we

noted in our prior opinion, Tatum successfully completed the first

burglary, safely escaped, and the following day committed the

second burglary.    As a Bill of Information is a charging document



                                    3
and thus specifically enumerated in the Supreme Court’s Shepard

holding, there is no Sixth Amendment error.

            Tatum fares no better on his Fanfan challenge regardless

of this court’s standard of review.1        Under ACCA, Tatum was subject

to a mandatory minimum sentence of one hundred eighty months.                He

has been sentenced to one hundred eighty months.               Because Tatum

would still be subject to the one hundred eighty-month sentence

under an advisory regime, the Fanfan error is harmless.

            Accordingly,     because   nothing    in   the   Supreme   Court's

Booker decision requires us to change our prior affirmance in this

case, we adhere to our prior determination and therefore reinstate

our   judgment    affirming,    as   modified,    Tatum’s    conviction     and

sentence.

            AFFIRMED AS MODIFIED.




      1
            If the court’s error in sentencing under a mandatory regime is
considered preserved in the trial court, the Government has sustained its burden
of proving harmless error. If the error was not preserved, and Tatum bears the
higher burden of plain error, he cannot satisfy it.

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