UNITED STATES of America, Plaintiff-Appellee, v. Tony Lee THOMPSON, Defendant-Appellant, 421 F.3d 278

Affirmed by published opinion. Judge WILKINSON wrote the majority opinion, in which Judge WIDENER joined. Chief Judge WILKINS wrote a dissenting opinion. OPINION WILKINSON, Circuit Judge. Tony Lee Thompson was indicted as a felon in possession of firearms under 18 U.S.C. §§ 922(g)(1), 924(e) (2000 & Supp. II). He pleaded guilty. When a defendant has at least three prior convictions for “violent felon[ies]” that were “committed on occasions different from one another,” § 924(e)(1), the Armed Career Criminal Act (“ACCA”), imposes a minimum sentence of fifteen years.

The district court found these statutory conditions satisfied and sentenced Thompson to that minimum sentence. On appeal, Thompson disputes the applicability of ACCA to his case. He claims that the statutory predicates- — that his pri- or convictions were violent felonies committed on separate occasions — were facts improperly found by the judge in violation of his Sixth Amendment rights. Because we conclude that the statutory predicates have been demonstrated as a matter of law, there remain no disputed questions of fact about Thompson’s prior convictions. We therefore affirm. I.

Tony Lee Thompson emerged from a residence- — not his own — on November 16, 2003, in High Point, North Carolina. He was carrying stolen items. The police department, having been alerted by a call complaining of a suspicious person, dispatched an officer who apprehended Thompson. The officer found him with a Jennings Bryco 9mm pistol and a Colt .38 caliber revolver. Since both firearms had moved in interstate commerce, Thompson was indicted as a felon-in-possession under § 922(g)(1). Thompson’s criminal history supplied the predicates for an enhanced sentence under § 924(e).

Thompson does not dispute that he has been convicted of felonies. The Presentence Investigation Report (“PSR”) — to which he raised no objection — details the extent of his criminal record. From the age of 16, Thompson (now 25) has been convicted of a string of crimes ranging from misdemeanor shoplifting and drug possession to a number of felonies. Particularly relevant among the more than twenty convictions described in the PSR are several for “felony breaking and entering” under North Carolina law.

The PSR records that Thompson pled guilty to felony breaking and entering of a residence in Trinity, North Carolina, on July 19, 2001; of another residence in Trinity on July 23, 2001; of a residence in Ashe-boro, North Carolina, on July 25, 2001; of a residence in Lexington, North Carolina, on October 1, 2001; of another residence in Lexington on June 18, 2002; and of yet two further residences in Lexington on November 7, 2002.

On the basis of these prior convictions and upon accepting the plea agreement Thompson reached with the government, the district court found the enhancement of § 924(e) — a mandatory minimum sentence of 15 years — to be applicable. The court thus sentenced Thompson to fifteen years imprisonment, five years of supervised release, and a $100 special assessment. Thompson now appeals, arguing that his sentence was unconstitutionally imposed as a matter of law. We review legal determinations of the district court de novo. United States v. Blake, 81 F.3d 498, 503 (4th Cir.1996). II.

Thompson believes that the Supreme Court’s recent Sixth Amendment rulings prohibit sentencing him under ACCA unless a jury finds (or he admits) the facts required by the statute. Two such facts — that three prior convictions were “violent felonies” and that they were “committed on occasions different from one another” — are predicates for ACCA enhancement. Thompson argues that since these facts were neither admitted by him nor found by a jury, they cannot justify the enhanced sentence.

Evaluating Thompson’s claims requires understanding the limitations the Supreme Court has placed on the use of judicial fact-finding in the sentencing context. In Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), the Supreme Court held that a sentencing regime violated the Sixth Amendment when judges found “factors” that increased a sentence beyond the maximum allowed by the jury findings alone. But by refusing to overturn its holding in Almendarez-Torres v.

United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), the Court explicitly excluded from this general rale “ ‘the fact of a prior conviction.’ ” Blakely, 124 S.Ct. at 2536 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). In United States v. Booker, — U.S. -, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court extended Blakely to the U.S. Sen-fencing Guidelines. But the Court repeated that only facts “other than a prior conviction” were subject to the jury requirements of the Sixth Amendment. Id. at 756. Most recently, in Shepard v.

United States, — U.S. -, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court addressed what was meant by the “fact of a prior conviction.” In Shepard, the Court considered a defendant situated much like Thompson. Shepard pleaded guilty to being a felon in possession under § 922(g)(1), and the government sought to use ACCA to enhance his sentence.

But the text of the Massachusetts statute under which Shepard previously had been convicted did not clearly meet the requirement of ACCA that the conviction be a “violent felony.” To demonstrate compliance with ACCA, the government offered documents like police reports to show that even if some convictions under the state statute might not be “violent felonies,” Shepard’s own convictions were. Id. at 1257-58. The Supreme Court refused the offer.

It prohibited judges from resolving a “disputed fact ... about a prior conviction,” id. at 1262, if doing so required data — like that found in police reports — that was not inherent in that prior conviction. At the same time, however, Shepard explicitly affirmed that the prior conviction exception remained good law. Id. at 1262. To this end, the Court authorized judges to rely on a variety of conclusive court documents when determining the nature of a prior conviction.

Approved sources include, for instance, the prior court’s jury instructions or the “charging documents filed in the court of conviction.” Id. at 1259. When there was no jury in the prior case, judges may use not only charging documents but “a bench-trial judge’s formal rulings of law and findings of fact.” Id.

For prior guilty pleas, “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [ ] some comparable judicial record of this information,” are all also available for use. Id. at 1263. The common denominator of the approved sources is their prior validation by process comporting with the Sixth Amendment.

Excluded sources, such as transcripts of testimony or police reports, are not necessarily inherent in the conviction. “[Subsequent evidentiary enquiries into the factual basis for the earlier conviction” are off-limits, id. at 1259, but “conclusive records” of the earlier conviction, id. at 1260, are not. In short, the “fact of a prior conviction” remains a valid enhancement even when not found by the jury.

Of course, sentencing judges may not smuggle in contraband facts — those that are reserved for juries— under the mantle of the “fact of a prior conviction.” But neither may we sever the prior conviction from its essential components. For instance, an artificially narrow reading of the “fact of a prior conviction” exception might extend to only a grudging acknowledgment that a defendant once had been convicted. Such a reading would answer the question “convicted of what?” by asserting that such a question involved facts “about” the conviction which were reserved to a jury. Shepard rejected this narrow approach.

In describing the materials that could be used by judges to determine the nature of a prior conviction, it reinforced the notion that some facts are so inherent in a conviction that they need not be found by a jury. If the Court had wished to endorse the narrower view — that only the bare existence of a prior conviction was exempt from jury determination — it could have saved itself great trouble by simply stating that such questions about a conviction were reserved for a jury, regardless of whether statutes, charging documents, or prior jury instructions revealed the nature of the conviction.

A conviction cannot, therefore, be reduced to nothing more than that the defendant was at some prior time convicted of some crime. This bare fact is certainly at the nucleus of the conviction. But that nucleus also contains other operative facts, such as the statute which was violated and the date of the conviction. The Supreme Court has declined to attempt extraction of the mere fact of a prior conviction, stripped of all content. We cannot be willfully blind to that content — date, statutory violation, and the like — where it is properly established by one of the sources approved in Shepard.

It is as much a part of the conviction as the fact that twelve jurors agreed about the defendant’s guilt. We have already had an opportunity to respect the line Shepard drew between data inherent in a prior conviction and those facts extraneous to it. In United States v. Washington, 404 F.3d 834 (4th Cir.2005), facts extraneous to the prior convictions had caused a heightened sentence.

The district court had to determine whether a prior conviction had been a “crime of violence” under the Sentencing Guidelines, where the relevant test was the fact-intensive inquiry of whether the prior conviction had “involve[d] conduct that presents a serious potential risk of physical injury to another.” Id. at 836 (quoting United States Sentencing Guidelines Manual § 4B1.2(a)(2)). The district court relied on “common experience” and “extra-indictment information,” id. at 842, to reach that conclusion.

Such sources, including discussions about the nature of the building that Washington had entered, about the kind of materials stored there, and about the likelihood of people being present or armed during the hour of the crime, id. at 836, necessarily provided facts not of a prior conviction but “ ‘about a prior conviction,’ ” id. at 839 (quoting Shepard, 125 S.Ct. at 1262) (emphasis in Washington), 841-42.

The court observed that “Washington’s prior guilty plea in no way implicated the level of the building’s security system, the nature of its employees and their activities, or whether they at times return to work at night.” Id. at 842. Because such facts were extraneous to the fact of conviction, we vacated the sentence, as Shepard required. The present case therefore turns on whether the facts necessary to support the enhancement inhere in the fact of conviction or are extraneous to it.

If Thompson can show that his prior convictions were not inherently “violent felonies” or that the convictions themselves were not for offenses committed during separate occasions, his sentence must be vacated. But if these facts are inherent in his prior convictions, then Thompson cannot demand a jury finding because no legitimately disputed fact provides the basis for the ACCA sentence. III. A. Thompson first points to the requirement in § 924(

e) that the predicate prior convictions were “violent felonies.” He argues that the indictment in this case alleged only, and insufficiently for § 924(

e) purposes, that he had previously been convicted “of crimes punishable by imprisonment for a term exceeding one year, that is, breaking and entering (3 counts); larceny (2 counts); and possession of burglary tools.” He disputes that this description of his prior convictions meets the requirements of § 924(e). At any rate, he argues, since the indictment did not specify that the prior convictions were for “violent felonies,” and since he did not admit as much in his guilty plea, the district court deprived him of the right to a jury’s determination when it enhanced his sentence.

As we have noted above, recent Supreme Court case law emphasizes that prior convictions are facts that need not be submitted to any jury. Shepard affirmed this rule. The only question here is whether Thompson’s prior convictions do or do not qualify as “violent felonies.” It is often “a question of law whether a felony meets the statutory definition of a ‘violent felony,’ and such a question does not trigger the Sixth Amendment concerns addressed in Booker." United States v. Moore, 401 F.3d 1220, 1225 (10th Cir.2005); see also United States v.

Wilson, 406 F.3d 1074, 1076 (8th Cir.2005) (finding a statutory offense to be a violent felony as a matter of law); United States v. Haynes, 961 F.2d 50, 51 (4th Cir.1992) (finding that the defendant’s status as a convicted felon “involves a purely legal determination”) (citation omitted). ACCA defines the term “violent felony” in part as “any crime punishable by imprisonment for a term exceeding one year ..., that ... is burglary .... ” § 924(e)(2)(B)(ii). In Taylor v.

United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court construed “burglary” in this context to be limited to what it called “generic burglary,” which is “unlawful or unprivileged entry into, or remaining in, a building or structure” — but not, for instance, a car or boat — -“with intent to commit a crime.” Id. at 598-99, 110 S.Ct. 2143; see also United States v. Bowden, 975 F.2d 1080, 1083 (4th Cir.1992).

We have already considered the question of whether the North Carolina statute proscribing “breaking or entering buildings,” see N.C.G.S. § 14-54, constitutes “generic burglary.” In Bowden, this court thoroughly examined ACCA, the Supreme Court’s decision in Taylor, and the North Carolina statute. Bowden, 975 F.2d at 1081-85. Using these sources, we explained why violations of the North Carolina statute “must be within Taylor," id. at 1085, and therefore are “violent felonies” for ACCA purposes. See also United States v.

Anderson, 921 F.2d 335, 340 (1st Cir.1990) (concluding that a “North Carolina conviction for breaking and entering clearly qualifies as a predicate offense under the Taylor definition” for a § 924(

e) enhancement). Since Bowden disposes of Thompson’s challenge to the classification of a North Carolina burglary conviction as a “violent felony” under § 924(e), we necessarily conclude that the statutory requirement of three prior convictions of violent felonies has been met. B. The statute also requires, however, that the three convictions count only if the offenses were “committed on occasions different from one another.” § 924(e)(1).

If a series of crimes can be characterized as a single “occasion,” criminal defendants stand to gain sentencing reductions by arguing that their crimes were part of a unified whole. Thompson unsurprisingly seeks to benefit from this possible construction of the word “occasion.” He claims that several of his offenses were part of a single “occasion,” and that he should thus not be sentenced under ACCA.

He has not explained how he packages his criminal past to reduce his violent felonies to fewer than three occasions, but his counsel at oral argument promised that if Thompson is given the chance to “take the stand and argue to the jury,” all will become clear. There is no occasion to persuade the jury, however, unless there is a disputed question of fact extraneous to Thompson’s prior convictions. No such question exists here. We have explained that “occasions” are “those predicate offenses that can be isolated with a beginning and an end— ones that constitute an occurrence unto themselves.” United States v.

Letterlough, 63 F.3d 332, 335 (4th Cir.1995). We listed several factors in that case to guide district courts, such as different geographic locations and victims. Id. at 335-36. Letterlough himself had two prior drug sale convictions, for sales occurring less than two hours apart. Id. at 334. As a matter of law, we held that “each of Let-terlough’s drug sales was a complete and final transaction,” id. at 337, and a separate occasion for ACCA purposes. Likewise, in United States v.

James, 337 F.3d 387, 391 (4th Cir.2003), we rejected a contention that the burglary of two different stores, across the street from each other, on the same day, could be part of the same “occasion.” And in United States v.

Hobbs, 136 F.3d 384, 387 & n. 5, 389 (4th Cir.1998), we observed that each of three burglaries in the space of a single hour “occurred on an occasion different from the others.” Letterlough itself favorably commented on a Fifth Circuit case which found two separate occasions when a defendant robbed a store and then “[sjeveral hours later ... returned to the very same store and robbed it again.” Letterlough, 63 F.3d at 336-37 (citing United States v. Washington, 898 F.2d 439 (5th Cir.1990)).

These cases, when applied to the information contained in Thompson’s PSR, compel the conclusion that Thompson committed acts of burglary on at least three separate occasions. The trial judge was entitled to rely upon the PSR because it bears the earmarks of derivation from «STiepard-approved sources such as the indictments and state-court judgments from his prior convictions, and, moreover, Thompson never raised the slightest objection either to the propriety of its source material or to its accuracy.

The PSR details three separate state court judgments, entered on different dates, in which Thompson was sentenced for burglarizing a residence. These three judgments encompass seven different counts of felony breaking and entering, taking place on six different days. And even if they had all occurred on the same day, the PSR further reveals that Thompson’s court proceedings occurred in two separate jurisdictions (Davidson County and Randolph County) and that the residences he burglarized were owned by seven different people living in three different towns.

Under these circumstances, our caselaw precludes any argument that the convictions represent fewer than three occasions of burglary — this is, in fact, a vastly easier case than Letterlough, James, or Hobbs. The line between facts that are inherent in a conviction and facts that are about a conviction is a common-sensical one, and there is no way that our conclusion as to the separateness of the occasions here can be seen to represent impermissible judicial factfinding. The Sixth Amendment requires that facts necessary for a given sentence (other than a prior conviction) be found by a jury.

But Blakely, Booker, and Shepard do not, of course, transmogrify what have always been questions of law into questions of fact. We therefore hold that the term “occasion” under ACCA necessarily includes burglaries like Thompson’s, which were committed on distinct days in separate towns in different homes. The data necessary to determine the “separateness” of the occasions is inherent in the fact of the prior convictions.

Finding distinct occasions does not require courts to stray beyond such data in the way that the district court in Washington did' — surmising what the contents of a given building might be, whether such contents were protected, who might have been in the building, whether such people would have been armed, what the building’s security level was. See Washington, 404 F.3d at 841-42. Like the Second Circuit, therefore, “we are not persuaded by the defendant’s contention that the separateness of the prior convictions can be distinguished from the mere fact of them existence.... ” United States v.

Santiago, 268 F.3d 151, 156 (2d Cir.2001); see also United States v. Burgin, 388 F.3d 177, 186 (6th Cir.2004) (“[T]he ‘different occasions’ requirement of § 924(

e) cannot be significantly distinguished from ‘the fact of a prior conviction.’ ”). We find instructive the distinction between the findings required in determining an “occasion” here and the kind of wide-ranging, fact-intensive findings made in Washington. The district judge in Washington labored under the constraints of § 4B1.2(a)(2) of the Guidelines, which asked whether a prior conviction “involve[d] conduct that presents a serious potential risk of physical injury to another.” Washington, 404 F.3d at 836.

Unsurprisingly, such a nebulous standard cries out for speculation regarding facts extraneous to the prior conviction. By contrast, ACCA’s use of the term “occasion” requires recourse only to data normally found in conclusive judicial records, such as the date and location of an offense, upon which Taylor and Shepard say we may rely. No finding of fact by a jury is necessary here, therefore. Whether the burglaries occurred on different occasions does require applying the fact that they were separate episodes.

But this fact is inherent in the convictions themselves, and thus is not among the kind of facts extraneous to a conviction that Blakely or Shepard requires a jury to find. To take notice of the different dates or locations of burglaries — something inherent in the conviction — is to take notice of different occasions of burglary as a matter of law.

Thompson has not offered either at sentencing or on appeal any way that his lengthy string of breakings and enterings on different days, in different towns, and in different jurisdictions can be seen by any factfinder — judge or jury — to represent fewer than three occasions. Indeed, his situation is precisely that for which ACCA was enacted. We are hardly alone in concluding that sentences such as Thompson’s are constitutional. Besides the Second Circuit in Santiago, many courts — both before and after Blakely, Booker, and Shepard — have shared our view.

In Wilson, 406 F.3d at 1075, the Eighth Circuit rejected a claim under those three cases that “whether [a defendant’s] prior felonies were violent offenses and whether they occurred on separate occasions should have been made by a jury....” Similarly, in Moore, 401 at 1224, the Tenth Circuit recognized that the Blakely line of cases did not require “the government [to] charge the ‘fact’ of a prior conviction in an indictment and submit it to a jury.” In United States v.

Barnett, 398 F.3d 516, 524-25 (6th Cir.2005), the Sixth Circuit found that Booker posed no obstacle to a “district court’s authority to determine the existence of prior convictions,” and that this authority “was broad enough to include determinations regarding the nature of those prior convictions.” Precisely because Blakely, Booker, and Shepard do not affect the “fact of conviction” exception (so long as legitimately disputed questions are resolved only with the sources approved in Shepard), earlier cases which construe terms like “occasion” or “violent felony” remain authoritative.

Our sister circuits have provided ample support for our statutory construction of those terms. See, e.g., United States v. Carnes, 309 F.3d 950, 956 (6th Cir.2002) (“The obvious way to distinguish between these two robberies is that Carnes had to leave one residence in order to burglarize the second.”); United States v. Riddle, 47 F.3d 460, 462 (1st Cir.1995) (“Whatever elastic there may be in [§ 924(e) ], it is not a reasonable stretch of language to describe five burglaries at five different locations on four different dates as occurring on the same occasion.”); United States v.

Hudspeth, 42 F.3d 1015, 1021 (7th Cir.1994) (en banc) (finding separate occasions when defendant “committed three distinct burglaries against three separate victims ... in three separate locations over the course of more than thirty minutes”) (footnotes omitted); United States v.

Brady, 988 F.2d 664, 669 (6th Cir.1993) (en banc) (observing that as a matter of law “offenses committed by a defendant at different times and places and against different victims, although committed within less than an hour of each other, are separate and distinct criminal episodes and that convictions for those crimes should be counted as separate predicate convictions under § 924(e)(1)”). rv. Thompson’s remaining arguments are entirely disposed of by our resolution of his § 924(

e) contentions, and they are therefore without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED. . ACCA provides that anyone “who violates § 922(g) ... and has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another ... shall be fined under this title and imprisoned not less than fifteen years ....”§ 924(e)(1). . Thompson also challenges his sentence under the Fifth Amendment, arguing that the indictment did not allege facts sufficient to support his enhanced sentence under ACCA.

As the dissent acknowledges, both of his constitutional claims are defeated if “the underlying facts justifying the ‘different occasions’ determination were each subsumed by the fact of Thompson's prior convictions.” Dissenting Op. at 289 (quotation marks and alterations omitted). As this is precisely what we conclude in our discussion of the Sixth Amendment, there is no need to conduct a separate Fifth Amendment analysis. . Our dissenting colleague would read Shepard purely as a case of statutory

interpretation. Dissenting Op. at 295. But as we recognized in United States v. Washington, 404 F.3d 834, 840-41 (4th Cir.2005), Shepard itself says otherwise. It did not escape the Court's notice in Shepard that the rule it announced might have constitutional implications. But the four-justice plurality noted that its

interpretation of ACCA had followed “the rule of reading statutes to avoid serious risks of unconstitutionality.'' Id. at 1262-63. And the three dissenting justices expressed the opinion that the Sixth Amendment permits judicial consultation of records even outside those that the plurality approved. Id. at 1269-70. Thus, seven justices indicated that it is constitutional for a judge to find the facts inherent in a prior conviction in the judicial records of that conviction. .

This conclusion would remain unchanged even if Thompson had challenged the PSR— if, for example, he alleged that the PSR described some other Tony Lee Thompson. Such "subsidiary findings” are part of " 'the fact of a prior conviction’ ” which judges may find. United States v. Santiago, 268 F.3d 151, 156 (2d Cir.2001). So long as such a "subsidiary finding” does not encompass any fact extraneous to the fact of conviction, it need not be found by a jury. Furthermore, although the indictment here referenced Thompson's prior convictions, the result would be the same if it had been less complete. See United States v.

Higgs, 353 F.3d 281, 302 (4th Cir.2003) (indictment need not charge a prior conviction to enhance a sentence); see also United States v. Burgin, 388 F.3d 177, 186 (6th Cir.2004) (whether prior convictions were committed on different occasions "need not be pled in an indictment”). . Thompson’s offense level was also increased in accordance with U.S. Sentencing Guideline § 4B1.4(b)(3)(B). Thompson’s prison sentence was mandated by statute and would have been unaffected by the Guidelines. The remaining parts of his sentence are consistent with the Guidelines.

The facts necessary for this sentence enhancement related to his pri- or convictions and, as we have explained, were thus appropriately found by the district court.