United States v. Tatum

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30815
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM SCOTT TATUM,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CR-50086-ALL
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
William Scott Tatum appeals his guilty plea conviction
and sentence for possession of a firearm by a convicted felon in
violation of 18 U.S.C. § 922(g)(1).
Tatum contends that the district court clearly erred when
it applied the four-level adjustment under U.S.S.G. § 2K2.1(b)(5)
*
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that this opinion should not be published and is not precedent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.
because there was no evidence that he used or possessed the firearm
in connection with another felony offense.
U.S.S.G. § 2K2.1(b)(5) provides for a four-level sentenc-
ing increase “[i]f the defendant used or possessed any firearm or
ammunition in connection with another felony offense.” The dis-
trict court’s determination of the relationship between the firearm
and another offense is a factual finding reviewed for clear error.
United States v. Condren, 18 F.3d 1190, 1199-1200 (5th Cir. 1994).
The district court did not clearly err when it found that
Tatum possessed the firearm in connection with the burglary.
Although there is no evidence that Tatum actually used the firearm
during the commission of the burglary, he admittedly possessed the
firearm, it was readily available to him, and it could have been
used to facilitate the burglary and his escape. See United States
v. Armstead, 114 F.3d 504, 512 (5th Cir. 1997); see also Condren,
18 F.3d at 1200. Accordingly, the district court properly applied
the four-level adjustment under U.S.S.G. § 2K2.1(b)(5).
Tatum contends that 18 U.S.C. § 924(e) constitutes a
separate criminal offense and, thus, the three predicate felonies
must be presented to a jury and proved beyond a reasonable doubt.
This argument is foreclosed by our decisions in United States v.
Stone, 306 F.3d 241, 243 (5th Cir. 2002) and United States v.
Affleck, 861 F.2d 97, 99 (5th Cir. 1988).
Tatum also contends that the district court erred when it
found that two burglary convictions entered on the same date
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pursuant to a single bill of information under one docket number
for which concurrent sentences were imposed constituted two
separate convictions for purposes of 18 U.S.C. § 924(e).
This court reviews the application of a sentencing
enhancement de novo. United States v. Munoz, 150 F.3d 401, 419
(5th Cir. 1998). “Multiple convictions arising from the same
judicial proceeding but from separate criminal transactions
constitute multiple convictions for purposes of [18 U.S.C.]
§ 924(e).” United States v. Ressler, 54 F.3d 257, 259 (5th Cir.
1995); see also United States v. Herbert, 860 F.2d 620, 622 (5th
Cir. 1988). “Where . . . multiple offenses are not part of a
continuous course of conduct, they cannot be said to constitute
either a criminal spree or a single criminal transaction for
purposes of section 924(e).” United States v. Washington, 898 F.2d
439, 441 (5th Cir. 1990).
The district court did not err when it found that Tatum’s
two burglary convictions constituted two separate convictions and
sentenced him as an armed career criminal under 18 U.S.C. § 924(e).
Tatum pleaded guilty to the simple burglary of the inhabited
dwelling of Cynthia Jones on February 21, 1995, and to the simple
burglary of the inhabited dwelling of Danny Fuller on February 22,
1995. Tatum successfully completed the first burglary, safely
escaped, and the following day committed the second burglary.
Thus, his burglaries of two different residences on two consecutive
days arose out of separate courses of conduct and were crimes
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“committed on occasions different from one another” for purposes of
18 U.S.C. § 924(e). See Washington, 898 F.2d at 441-42. The fact
that Tatum was convicted in a single proceeding from a single bill
of information under one docket number with sentences imposed to
run concurrently is not dispositive. See Herbert, 860 F.2d at 622.
Finally, Tatum contends that the district court erred
when it sentenced him beyond 15 years because he was not informed
at the guilty plea hearing that the maximum sentence to which he
could be exposed if 18 U.S.C. § 924(e) was found to apply was any
greater than the 15-year mandatory minimum. The Government
concedes that Tatum was not fully advised of the maximum sentence
to which he was exposed by his guilty plea and contends that the
188-month sentence imposed by the district court should be reduced
to the 180-month mandatory minimum of which Tatum was clearly
advised.
This court has held that when a sentence exceeds the term
of which the court has informed the defendant, the district court
may remedy any prejudice suffered as a result of the FED. R. CRIM.
P. 11 violation by reducing the term to conform to the maximum term
of which he was informed. United States v. Andrews, 918 F.2d 1156,
1161 (5th Cir. 1990); see also United States v. Lewis, 875 F.2d
444, 445 (5th Cir. 1989). Tatum does not contend otherwise.
Therefore, we modify the sentence to reflect the 15-year minimum
term that Tatum acknowledged to be applicable.
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AFFIRMED AS MODIFIED.
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