* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-11373

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.

United States Court of Appeals

Fifth Circuit

F I L E D

January 23, 2008

Charles R. Fulbruge III

Clerk
No. 06-11373

2

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 thatthe 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
No. 06-11373

3

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. 
No. 06-11373

4

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
No. 06-11373

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). 

5

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.”1Id. 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
No. 06-11373

6

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 onlyShepard-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,theFuller 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
No. 06-11373

7

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. UnitedStates, 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.