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

                                                                            FILED
                                                                         January 23, 2008

                                       No. 06-11373                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff-Appellee
v.

DONOVAN LEMONT BOOKMAN

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                            USDC No. 4:05-CR-15-ALL


Before KING, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant Donovan Bookman challenges his sentence on the grounds that
the district court improperly applied the Armed Career Criminal Act and that
the Armed Career Criminal Act is unconstitutional. We find both arguments
unavailing and AFFIRM the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-11373

                     I. Factual and Procedural History
      Pursuant to a written plea agreement, Defendant Donovan Lemont
Bookman (“Defendant”) pleaded guilty to being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g). The presentencing report (“PSR”) determined
that Bookman was an armed career criminal within the meaning of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4(a),
because he had four prior violent-felony convictions, i.e., four prior convictions
for burglary of a habitation. Thus, the PSR assigned him a base offense level of
33. After considering Bookman’s acceptance of responsibility and criminal
history, the PSR recommended an advisory guidelines range of 180 to 210
months of imprisonment.
      At his sentencing hearing, Bookman objected to the ACCA sentence
enhancement, arguing that the four burglary-of-a-habitation convictions should
be considered related cases because the burglaries took place within 26 days of
each other, in close geographic proximity, and as part of a common scheme or
plan. As further support for this argument, Bookman noted that his convictions
occurred on the same date, were consolidated for sentencing, and resulted in
identical, concurrent sentences. Bookman further objected to the enhancement
on the ground that the Government had not presented adequate proof that the
convictions were separate from each other within the meaning of the ACCA and
that the Government was required to prove the issue of the timing of the
offenses to a jury beyond a reasonable doubt. Finally, he asserted that his prior
convictions are not mere sentencing factors but elements of the offense which
had to be pleaded and proved beyond a reasonable doubt.
      The district court overruled Bookman’s objections, specifically finding,
based on a preponderance of the evidence as established in the PSR, that the
prior burglary convictions were not related but constituted separate offenses
under the ACCA.      The court concluded that the ACCA enhancement was

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appropriate and that Bookman faced an advisory guidelines range of 180 to 210
months; it sentenced him to 180 months.
      Bookman appealed to this court, arguing that the ACCA enhancement was
erroneous because the Government had not shown that his prior burglary
convictions occurred on different occasions with appropriate Shepard-approved
documents; he also argued that he had a Sixth Amendment right to a jury trial
on both the fact of his prior convictions and whether they occurred on separate
occasions.   The Government conceded error under Shepard, and this court,
concluding that the record did not establish that the sequence of Bookman’s
prior convictions had been proved through appropriate documents, found the
ACCA enhancement to be in error, vacated the district court’s judgment, and
remanded for resentencing without addressing Bookman’s constitutional claims.
      On remand, the district court ordered the Government to provide the
appropriate documentation to supplement the PSR, and the Government
submitted the state-court pleadings, including the indictments and judgments,
in each of Bookman’s prior burglary convictions. These documents show that the
burglaries were committed on different dates and involved different victims.
      Based on this information, a second addendum to the PSR that included
the state-court indictments and judgments recommended the same sentence
formerly imposed. At the resentencing hearing, Bookman again objected to the
ACCA enhancement, arguing that the documents provided by the Government
did not sufficiently establish that his prior burglaries had been committed on
different dates because the indictments alleged only that the offenses occurred
“on or about” certain dates, not on any specific dates. Bookman also renewed his
argument that the Government was required to plead and prove the fact of his
prior convictions and the fact that they occurred on separate occasions beyond
a reasonable doubt before the ACCA enhancement could apply, but he conceded
that these arguments were foreclosed.

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      The district court again overruled each of Bookman’s objections,
specifically determining that a reasonable reading of the indictments established
that the burglaries were committed on different, specific dates. The district
court noted that, apart from his objection to the “on or about” language in the
indictments, Bookman did not disagree with the dates indicated. Thus, the
district court adopted the findings and conclusions of the PSR and sentenced
Bookman to 180 months of imprisonment. Bookman timely appealed.


                          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, Bookman challenges his sentence enhancement under the
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 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

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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
explicit finding by the trial court to which the defendant assented. See Fuller,
453 F.3d at 279 (citing Shepard, 44 U.S. at 16, 24-26).
       According to these procedures, the district court’s imposition of the ACCA
enhancement was proper in Bookman’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

       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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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. T h i s
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.
      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. Constitutionality of the ACCA
      Conceding that the issue is foreclosed but raising it to preserve his claim
for further review, Bookman also contends that the Government was required
to plead and prove beyond a reasonable doubt both the fact of his prior

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convictions and the fact that they occurred on occasions separate from one
another before the ACCA enhancement could be applied. As Defendant concedes,
both arguments are foreclosed. See Almendarez-Torres v. United States, 523 U.S.
224, 235 (1998) (holding that the fact of a prior conviction is a sentencing factor,
not a separate offense that must be alleged in the indictment); see also United
States v. White, 465 F.3d 250, 254 (5th Cir. 2006), cert. denied, 127 S. Ct. 1167
(2007) (finding no Sixth Amendment right to a jury finding on the existence of
prior convictions or on the issue of their separateness).


                                 IV. Conclusion
      For the reasons stated above, we AFFIRM Bookman’s sentence.




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