                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 06-4190



UNITED STATES OF AMERICA,

                                                Plaintiff - Appellee,

           versus


WILLIAM BYRON BOWMAN,

                                               Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (4:05-cr-00018-jlk)


Argued:   October 26, 2006                 Decided:   February 1, 2007


Before MICHAEL, MOTZ, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.


ARGUED: Phillip Richard Lingafelt, GLENN, FELDMANN, DARBY &
GOODLATTE, Roanoke, Virginia, for Appellant. Edward Albert Lustig,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.     ON BRIEF: John L.
Brownlee, United States Attorney, Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       William Byron Bowman appeals his conviction in the Western

District of Virginia for possession of a firearm by a convicted

felon, in contravention of 18 U.S.C. § 922(g), and his resulting

sentence       of   210    months’   imprisonment.       With     respect   to   his

conviction, Bowman maintains that the district court erred in

failing to suppress evidence obtained in an unconstitutional search

of his home.        With regard to his sentence, Bowman asserts that the

court erroneously ruled that he had previously been convicted of

three serious drug offenses that had occurred on separate occasions

— a finding that rendered him subject to the enhanced sentencing

provisions of the Armed Career Criminal Act, 18 U.S.C. § 924(e)

(the       “ACCA”).       As   explained   below,   we   reject   Bowman’s   first

assignment of error, and thus affirm his conviction. We agree with

his second contention, however, and, as a result, vacate his

sentence and remand for further proceedings.1




       1
      Bowman has also appealed the district court’s denial of his
motion for a downward variance from the advisory Guidelines range
to which he was subject as an armed career criminal. Because we
vacate his sentence and the court’s finding that he is subject to
the ACCA, we need not address his contention on the downward
variance issue.

                                           2
                                 I.

                                 A.

     On November 18, 2003, a woman named Angela Prater, with whom

Bowman was romantically involved, called 911 to report that Bowman

had assaulted her at his home in Henry County, Virginia.     Several

officers of the county Sheriff’s Department responded to the call.

When the officers arrived at the scene, Bowman was standing outside

his residence.   The officers asked Bowman to accompany them to the

police station to answer questions about Prater’s allegation.

Bowman agreed to go with the officers, but said that he first

needed to go inside his home to put on a shirt and shoes.

     What happened next is in dispute.   According to Steven Wells,

one of the responding officers, he asked Bowman, “Do you mind if I

go [inside] with you?” and Bowman responded, “No.”       J.A. 45.2

Bowman, however, denies that the officers requested permission to

enter his home.     Rather, he asserts that the officers simply

informed him that “[w]e need to go with you inside to get your

shoes.”   Id. at 35.   The parties agree that officer Wells, along

with some other officers, did accompany Bowman into his residence.

Once inside, according to officer Wells, he asked Bowman, “Do you

mind if I look around?” and Bowman again gave his consent.    Id. at




     2
      Citations herein to “J.A. ___” refer to the contents of the
Joint Appendix filed by the parties in this appeal.

                                 3
45. Bowman, though, denies that he gave the officers permission to

look around the house.

     The remaining facts are not in material dispute.                    Inside

Bowman’s residence, Wells observed a homemade device used for

smoking crack cocaine (the device was a beer can that had been

adapted     to     that    purpose).        Upon   discovering    this     drug

paraphernalia, Wells decided to apply for a warrant to search the

residence.        Consistent    with   established    Sheriff’s   Department

procedures, the officers secured the scene by walking through the

residence and ensuring that no one remained inside while the search

warrant was being obtained.            During that process, the officers

discovered the butts of two marijuana cigarettes in plain view, in

an ashtray on the bathroom counter.

     Officer Wells then applied to the state magistrate court for

a search warrant, asserting probable cause on the basis of the

homemade crack-smoking device and the marijuana found in Bowman’s

residence.       In the affidavit supporting his warrant application,

Wells stated that Bowman had given him permission to look around

the home.        A state-court magistrate issued the requested search

warrant, and when the officers executed it, they found two twelve-

gauge shotguns.           After the search of Bowman’s residence, the

officers requested, and Bowman granted, his written consent to

search a nearby garage that he owned.




                                        4
                                         B.

     Because       Bowman   had   been   previously      convicted    of   several

felonies, the discovery of the shotguns in his home led to his

federal indictment, on June 2, 2005, for possession of a firearm by

a convicted felon, in contravention of 18 U.S.C. § 922(g).                      On

August 22, 2005, Bowman moved to suppress the shotguns, asserting

that the search of his home violated the Fourth Amendment.                  In his

suppression    motion,      Bowman    maintained    that    Wells    had   falsely

asserted,     in     his    affidavit    supporting      the    search     warrant

application, that Bowman had given the officers permission to enter

his home and look around.            Bowman contended that, absent Wells’s

false statement, the magistrate would have recognized that the

drugs and drug paraphernalia found during the initial entry into

the residence were the fruit of an unlawful search, and thus could

not serve to establish probable cause for the warrant.                     Because

probable cause would not have existed absent Wells’s alleged false

representation, Bowman maintained, the search warrant was invalid

and unconstitutional.

     On     August    29,    2005,    the     district    court     conducted   an

evidentiary    hearing      on    Bowman’s    suppression      motion.     Bowman

testified that he had not given the officers permission to enter or

look around his home when they responded to Prater’s 911 call.                  He

also asserted that he did not trust the Henry County Sheriff’s

Department, having had unpleasant experiences with them in the


                                         5
past, and that it was thus implausible that he would have allowed

them to enter or search his dwelling.         The Government responded

with officer Wells’s testimony that Bowman had given him permission

to enter the residence and look around, as well as the evidence of

officer David Morris — who had been present during the search —

that Bowman had given Wells and the other officers permission to

enter.     The Government also proffered Bowman’s written consent to

the search of his off-site garage, to rebut his contention that he

would not have consented to a search of his home because he

distrusted the Sheriff’s Department.

     The    district   court   denied   Bowman’s   suppression   motion,

discrediting his testimony and crediting that of officers Wells and

Morris.    The court found it significant that Bowman had given the

officers written consent to search his garage.        That evidence, the

court concluded, undercut Bowman’s claim that he would not have

consented to a search because he distrusted the authorities.        And,

more generally, the court found that “the officers’ account of what

happened is very lucid and logical,” and explained that, “frankly,

I just don’t believe Mr. Bowman.”       J.A. 62.   Thus, the court found

that the officers’ initial, limited search of Bowman’s home had

been conducted with Bowman’s consent.        As a result, the shotguns

discovered there were admitted into evidence at his one-day jury

trial, conducted September 1, 2005, and he was found guilty as

charged.


                                    6
                                          C.

      In preparation for Bowman’s sentencing, the probation officer

prepared a Presentence Investigation Report (the “PSR”), which was

submitted to the sentencing court on October 14, 2005.                        The PSR

took the position that Bowman was subject to an enhanced sentence

under the ACCA because he had three previous convictions for

serious   drug     offenses      (as    defined   by    the   ACCA)      committed   on

occasions different from one another.                  The first of these three

ACCA-predicate convictions — the PSR’s characterization of which

Bowman does not challenge in this appeal — was a 1980 conviction

in   Franklin     County,   Virginia,       for   distributing        marijuana      and

cocaine (the “Franklin County conviction”). The PSR specified that

Bowman had also been convicted in Henry County, Virginia, in 1980,

on two counts of distribution of marijuana, and that these two

offenses had occurred on separate occasions — March 14, 1979, and

January   13,     1980   (the    “Henry    County      convictions”).         The    PSR

identified the Franklin County conviction, plus the two Henry

County    convictions,      as    the    three    predicate        convictions      that

qualified Bowman as an armed career criminal under the ACCA.

      At Bowman’s February 3, 2006 sentencing hearing, the probation

officer testified regarding how he had determined the nature of the

Henry    County    convictions.           As   evidence       of   the    convictions

themselves, the officer had relied on two sentencing orders, both

dated November 5, 1980, which specified that Bowman had been

                                           7
convicted of the offense of “Distribute Controlled Drug.”                 J.A.

117, 120.   One of the sentencing orders bore docket number CR-80-

0213 and ordered that Bowman serve five years in prison (the “First

Sentencing Order”). The other carried docket number CR-80-0214 and

also ordered five years’ imprisonment, but suspended two years of

that sentence (the “Second Sentencing Order”).                The sentencing

orders themselves, however, did not establish that the offenses for

which Bowman was sentenced had occurred on separate occasions,

because they did not include the dates of his offense conduct.               For

that    information,   the    probation     officer     had    examined      two

indictments, both returned by the Henry County grand jury in

January 1980.     One, labelled “Case A,” alleged that Bowman had

distributed     marijuana    on   January      13,    1980    (the   “Case     A

Indictment”).    The other, labelled “Case B,” alleged that Bowman

had    distributed   marijuana    on   March    14,    1979   (the   “Case     B

Indictment”).    Significantly, neither of the two indictments bore

a docket number or any other information linked to either of the

sentencing orders.     The probation officer testified, however, that

he had found the Case B Indictment in the same file folder as the

First Sentencing Order and the Case A Indictment in the same file

folder as the Second Sentencing Order. On that basis, he concluded

that the First Sentencing Order was for a conviction on the March

14, 1979 offense alleged in the Case B Indictment, and that the

Second Sentencing Order was for a conviction on the January 13,


                                       8
1980 offense alleged in the Case A Indictment.                     The sentencing

court   relied   on    the     probation       officer’s    testimony   as    to   the

circumstances     in     which    he    had     located     the   indictments      and

sentencing orders, and found that “the documents, together with the

testimony, bear out that the presentence report is accurate” in its

assertion that the two Henry County convictions were for offenses

that    had   occurred    on    separate       occasions.     J.A.   92.      Bowman

objected, asserting that the court could not properly consider the

probation     officer’s      testimony     in    finding    the   foregoing     facts

concerning Bowman’s prior convictions.                The court overruled that

objection, however, and determined that Bowman was subject to an

enhanced sentence as an armed career criminal.

       Because he was classified an armed career criminal, Bowman’s

offense level under the Guidelines was 33, which, together with his

criminal history category of V, produced an advisory sentencing

range of 210 to 262 months.            The sentencing court’s application of

the ACCA also rendered Bowman subject to a mandatory minimum

sentence of 180 months.            After denying Bowman’s motion for a

downward variance to the 180-month statutory minimum, the court

sentenced him to 210 months’ imprisonment, the bottom of his

Guidelines range.         Had Bowman not been deemed an armed career

criminal, his statutory maximum sentence would have been 120

months, and his advisory Guidelines range would have been 33 to 41

months.


                                           9
     Bowman has appealed his conviction and sentence, and we

possess jurisdiction pursuant to 28 U.S.C. § 1291.



                               II.

     We review a district court’s findings of fact — including

those underlying the denial of a suppression motion — for clear

error.   See United States v. Rusher, 966 F.2d 868, 873 (4th Cir.

1992).   A finding of fact is clearly erroneous when, through our

review of the evidence, we are left with the definite and firm

conviction that a mistake has been committed.       United States v.

Singh, 363 F.3d 347, 354 (4th Cir. 2004) (citing United States v.

U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).          In reviewing a

district court’s factual findings, we give great deference to the

court’s credibility determinations. See United States v. Feurtado,

191 F.3d 420, 424 n.2 (4th Cir. 1999).    We review de novo the legal

rulings made by a sentencing court.      United States v. Daughtrey,

874 F.2d 213, 217-18 (4th Cir. 1989).



                               III.

     By this appeal, Bowman first contends that the district court

erred in finding that he consented to the initial search of his

home by the authorities, and thus erroneously denied his motion to

suppress the shotguns that were found pursuant to the search

warrant. Second, he maintains that the court erroneously relied on

                                10
the probation officer’s testimony to find that the two Henry County

convictions had occurred on separate occasions, and therefore erred

in sentencing him as an armed career criminal.             We address these

contentions in turn.



                                       A.

     Bowman first maintains that the district court erred in

failing to suppress the shotguns found in the search of his

residence. He asserts that the search warrant under which the guns

were found and seized was invalid and unconstitutional, because it

depended on officer Wells’s statement — which Bowman contends was

false — that Bowman had consented to the initial, limited search

of his home.    The nub of Bowman’s position in this regard, then, is

that the court erred in its factual finding that, when Bowman

entered   his   residence   to   get    dressed,   he    gave   the   officers

permission to accompany him and look around.

     Put simply, the court’s finding that Bowman consented to the

officers’ initial entry and search of his home is not clearly

erroneous.      The   evidence   on    whether   the    initial   search   was

consensual consists of the competing testimony of Bowman, on the

one hand, and officers Wells and Morris, on the other, plus

Bowman’s written consent — given to the authorities the same day

as the search of his residence — for a search of the nearby garage

that he owned.    The court, based on its firsthand assessment of the

                                       11
witnesses’ demeanor and veracity, found the officers’ testimony to

be credible and found that Bowman was not credible.       The sole item

of non-testimonial evidence — Bowman’s written consent to the

search of his garage — supports the court’s finding.       Moreover, we

agree with the court that the officers’ version of events is wholly

plausible.   Bowman points to no evidence that would leave us with

a definite and firm conviction that the court made a mistake in

finding that he consented to the challenged search.           In these

circumstances, we must conclude that the court did not err in

denying Bowman’s suppression motion.



                                 B.

     Bowman’s   second   contention   is   that   the   district   court

erroneously relied on the probation officer’s testimony in finding

that the two Henry County offenses occurred on separate occasions.

Had the court not made that finding, Bowman asserts, he would not

have been classified an armed career criminal, and would not have

been subject to the resulting sentence enhancement.       We agree with

Bowman’s position in this regard and thus vacate his sentence.

     As pertinent here, the ACCA enhances the sentence of a felon

who possesses a firearm after having been convicted of three or

more serious drug offenses that occurred on separate occasions.

See 18 U.S.C. § 924(e)(1).   The ACCA’s definition of “serious drug

offense” includes, inter alia, any state-law drug distribution

                                 12
crime for which the longest possible prison term is at least ten

years.      See id. § 924(e)(2)(A)(ii).            If a defendant is deemed to be

armed career criminal under the ACCA, he is subject to a minimum

sentence        of   fifteen   years   in       prison.      See   id.   §   924(e)(1).

Moreover, such a defendant suffers serious consequences under the

advisory Guidelines:           his offense level is set at a minimum of 33,

well more than double the base offense level of 14 that applies to

a felon in possession of a firearm who is not subject to the ACCA.3

See U.S.S.G. §§ 2K2.1(a)(6), 4B1.4(b)(3)(B).

       Typically, a sentencing court, rather than a jury, makes the

factual finding on whether a defendant has previous convictions

qualifying him for enhanced sentencing under the ACCA.                        Like any

fact that increases a defendant’s possible punishment, however, the

fact that a defendant’s prior convictions bring him within the ACCA

must       be   established    through      a    procedure    consistent      with   his

constitutional right to trial by jury. See Apprendi v. New Jersey,

530 U.S. 466, 487-88 (2000); United States v. Thompson, 421 F.3d

278, 281-82 (4th Cir. 2005); United States v. Washington, 404 F.3d

834, 839 (4th Cir. 2005).          Accordingly, in determining the fact of

an ACCA-predicate conviction, a court must rely only on records

that were generated in a prior judicial proceeding comporting with

the Sixth Amendment, and that conclusively establish facts either


       3
      The minimum base offense level of 33 for an armed career
criminal may be reduced by an adjustment for acceptance of
responsibility. See U.S.S.G. § 4B1.4(b)(3) & note.

                                            13
admitted by the defendant or inherent in the previous conviction.

See Thompson, 421 F.3d at 281-82; see also Shepard v. United

States,    544   U.S.   13    (2005)   (specifying     sources     eligible   for

consideration in determining nature of conviction based on guilty

plea).    Examples of the sources suitable for this purpose include

an earlier proceeding’s charging documents, jury instructions,

formal rulings of law and findings of fact, judgments, and plea

agreements.      See Thompson, 421 F.3d at 281-82.                We have deemed

unsuitable,      by   contrast,    such    sources   as   police    reports   and

transcripts of testimony, because assertions made therein are not

inherently confirmed by the prior conviction, and therefore have

not been properly established by an earlier judicial proceeding.

See id.

     The application of this legal framework to the instant facts

is straightforward.          The probation officer’s testimony was not a

source that the sentencing court should have considered in finding

facts    concerning     Bowman’s   prior       convictions   in   Henry   County,

because it was not a record of a fact conclusively established in

an earlier judicial proceeding. Yet the court explicitly relied on

that testimony to find that the First and Second Sentencing Orders

represented convictions for the offenses alleged in the Case B and

Case A Indictments, respectively, and — by extension — that the

two Henry County offenses had occurred on separate occasions.                 The

court’s finding in that regard was thus erroneous.                  Because this


                                          14
finding was essential to Bowman’s being sentenced as an armed

career criminal, we vacate his sentence and remand for such further

proceedings as may be appropriate.



                                  IV.

     Pursuant to the foregoing, we affirm Bowman’s conviction, but

vacate his sentence and remand.

                                         AFFIRMED IN PART, VACATED
                                             IN PART, AND REMANDED




                                  15
