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

                                                                  FILED
                                                                October 26, 2007
                                No. 06-10846
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

UNITED STATES OF AMERICA

                                           Plaintiff-Appellee

v.

STEPHEN WAYNE NORWOOD

                                           Defendant-Appellant


                 Appeal from the United States District Court
                      for the Northern District of Texas
                          USDC No. 7:03-CR-9-ALL


Before KING, DAVIS and CLEMENT, Circuit Judges.
PER CURIAM:*
      Stephen Wayne Norwood appeals from his conviction of possession of
ammunition by a convicted felon. We previously affirmed Norwood’s conviction,
affirmed the sentence in part, and remanded the case for resentencing. United
States v. Norwood (Norwood I), 155 F. App’x 784 (5th Cir. 2005).
      Norwood contends that the Government failed to prove his prior
convictions to the extent required by federal law because the state-court records



      *
      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should not be published and is not precedent except under the limited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. 06-10846

do not indicate that he was admonished about the consequences of his true pleas
to enhancement paragraphs to the extent that those pleas could be deemed
knowing and voluntary. Thus, he argues, his true pleas did not constitute
admissions “entered pursuant to proceedings with substantial procedural
safeguards of their own,” Apprendi v. New Jersey, 530 U.S. 466, 488 (2000), that
can be used for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e). Norwood did not raise this particular contention in the district court;
the contention thus is reviewed under the plain error standard. See United
States v. Gonzalez-Chavez, 432 F.3d 334, 336 (5th Cir. 2005).
      Although Norwood challenges the validity of his true pleas, he does not
contend that his guilty pleas were entered without adequate procedural
safeguards. The indictments and judgments introduced in the district court--
apart from the allegations in enhancement paragraphs--indicated that Norwood
committed burglaries on October 14, 1980, January 19, 1983, July 30, 1988,
February 16, 1986, and March 14, 1991.              Those documents satisfy the
requirements of Shepard v. United States, 544 U.S. 13 (2005).
      In light of Apprendi, Norwood challenges the constitutionality of the
treatment of prior convictions as sentencing factors rather than elements of the
offense that must be found by a jury. In the context of challenges to the
constitutionality of 8 U.S.C. § 1326(b), this court has held that this issue is “fully
foreclosed from further debate.” United States v. Pineda-Arrellano, 492 F.3d
624, 625 (5th Cir. 2007), petition for cert. filed (Aug. 28, 2007) (No. 07-6202).
      Norwood contends that the district court should not have been permitted
to consider the documentary evidence of his prior convictions at resentencing.
He asserts, based on Supreme Court precedent in death penalty cases, that
consideration of new evidence on remand violates the Double Jeopardy Clause.
Norwood raises his contention for the first time on appeal; our review is for plain
error. See Gonzalez-Chavez, 432 F.3d at 336.



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                                  No. 06-10846

      When the record is insufficient to determine whether a defendant’s
previous convictions qualify him for sentencing under the ACCA, the case is
remanded to the district court for supplementation of the record and
resentencing. Id. at 338. The Double Jeopardy Clause is inapplicable to non-
capital sentencing proceedings. See Monge v. California, 524 U.S. 721, 728
(1998). Norwood has failed to show error, plain or otherwise.
      Norwood contends that the district court erred by imposing his federal
sentence to run consecutively to his Young County sentence because his post-
revocation resentencing had not yet occurred before his initial federal
sentencing.    We need not consider Norwood’s contention, as the issue of
consecutive versus concurrent sentences was beyond the scope of our previous
remand. See United States v. McCrimmon, 443 F.3d 454, 459 (5th Cir.), cert.
denied, 547 U.S. 1120 (2006); United States v. Lee, 358 F.3d 315, 321 (5th Cir.
2004).
      Norwood contends that the district court erred by denying his motion to
withdraw his guilty plea without an evidentiary hearing. He concedes that the
issue is foreclosed by this court’s decision in Norwood I, but he raises it to
preserve it for further review. Norwood offers no argument on the issue other
than to “incorporate by reference his briefing on the issue undertaken in the
prior appeal.” Norwood may not incorporate his previous briefs. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993). He thus has failed to brief his
issue for appeal. See id.
      Norwood’s appeal is without arguable merit and is dismissed as frivolous.
See United States v. Salazar-Olivares, 179 F.3d 228, 230 (5th Cir. 1999); 5TH CIR.
R. 42.2. The Government’s motion to dismiss Norwood’s appeal is denied as
unnecessary.
      APPEAL DISMISSED AS FRIVOLOUS.                   MOTION TO DISMISS
DENIED.



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