In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4443
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JEREMY D. HAGENOW,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 CR 134—Robert L. Miller, Jr., Chief Judge.
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ARGUED FEBRUARY 13, 2007—DECIDED JUNE 7, 2007
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Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. In this appeal, we consider
for the second time Jeremy Hagenow’s sentence for his
conviction of being a felon in possession of a firearm and
ammunition. At the initial sentencing hearing, the gov-
ernment introduced an affidavit attached to an informa-
tion to demonstrate that Hagenow’s prior conviction for
criminal confinement was for a “crime of violence” within
the meaning of the sentencing enhancement provided in
U.S.S.G. § 2K2.1. Subsequent case law made clear that
such an affidavit was not an acceptable way of showing
that a conviction constituted a crime of violence. At the
sentencing hearing on remand, the government intro-
duced instead the plea colloquy transcript from Hagenow’s
2 No. 05-4443
criminal confinement matter. Because we conclude that
the district court properly allowed the government on
remand to introduce, for the first time, the plea colloquy
transcript in support of its argument that the convic-
tion was for a crime of violence, we affirm.
I. BACKGROUND
Jeremy Hagenow was charged with unlawfully possess-
ing a firearm and ammunition as a felon, in violation of 18
U.S.C. § 922(g)(1). The district court denied Hagenow’s
motion to suppress, and the case proceeded to trial. A jury
found Hagenow guilty on the indictment’s sole count.
Hagenow received a sentence of fifty-seven months’
imprisonment, and he appealed. We affirmed Hagenow’s
conviction but remanded for resentencing because the
district court: (1) assessed a criminal history point for a
prior misdemeanor conviction that should not have been
counted, and (2) relied upon an affidavit for probable
cause attached to a charging document to determine that
Hagenow’s prior Indiana conviction for criminal confine-
ment was for a “crime of violence” within the meaning of
U.S.S.G. § 2K2.1(a)(4)(A). United States v. Hagenow, 423
F.3d 638, 645, 647 (7th Cir. 2005).
A resentencing hearing took place on October 31, 2005.
At that hearing, the government for the first time sought
to introduce the transcript of the plea colloquy from
Hagenow’s state court criminal confinement case. Over
Hagenow’s objection, the district court allowed the gov-
ernment to present this new evidence to demonstrate that
Hagenow’s prior conviction for criminal confinement
constituted a crime of violence under U.S.S.G. § 2K2.1.
The district court’s consideration of the plea colloquy
led it to conclude that the prior conviction was for a crime
of violence, and, therefore, that the enhancement in
§ 2K2.1 applied. The district court then imposed a sen-
No. 05-4443 3
tence of 46 months’ imprisonment followed by three years
of supervised release. Hagenow appeals.
II. ANALYSIS
The only question before us is whether the district court
properly allowed the government to present, at the re-
manded sentencing hearing, the transcript of a plea
colloquy from a prior conviction to show that Hagenow’s
prior conviction was for a crime of violence within the
meaning of U.S.S.G. § 2K2.1. Hagenow does not dispute
that if the district court correctly considered the new
evidence, the plea colloquy allowed the district court to
find that his prior conviction was for a crime of violence.
We review a district court’s decision to admit new evi-
dence at a remanded sentencing hearing de novo. United
States v. Noble, 367 F.3d 681, 682 (7th Cir. 2004).
Pursuant to U.S.S.G. § 2K2.1(a)(6), the base offense
level for a violation of 18 U.S.C. § 922(g)(1), being a felon
in possession of a firearm or ammunition, is generally 14.
If, however, the defendant committed the offense after
sustaining a felony conviction for a “crime of violence,” the
base offense level is 20. U.S.S.G. § 2K2.1(a)(4)(A) (2004).
A “crime of violence” under this provision includes any
offense punishable by more than one year of imprison-
ment that “has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). The government bears
the burden of proving by a preponderance of the evidence
that the crime of violence enhancement applies. See
United States v. Hines, 449 F.3d 808, 815 (7th Cir. 2006);
United States v. Ewing, 129 F.3d 430, 434 (7th Cir. 1997).
At the initial sentencing hearing, the district court
considered the Affidavit to Support Probable Cause
attached to the information, concluded that it demon-
4 No. 05-4443
strated that Hagenow’s prior conviction for criminal
confinement was for a crime of violence, and imposed the
§ 2K2.1 enhancement. After that hearing, the Supreme
Court held that a court determining the nature of a prior
conviction under the Armed Career Criminal Act is
generally limited to examining “the statutory definition,
charging document, written plea agreement, transcript of
plea colloquy, and any explicit factual finding by the trial
judge to which the defendant assented.” Shepard v. United
States, 544 U.S. 13, 16 (2005). Relying on Shepard, we
held in United States v. Lewis, 405 F.3d 511 (7th Cir.
2005), that an affidavit attached to an information as part
of Indiana practice is not part of the charging document
for the purpose of determining whether the charged crime
is a crime of violence. 405 F.3d at 515. In light of these
decisions, the government agreed that Hagenow’s sen-
tence should be vacated and remanded for resentencing,
the same procedure we had prescribed in Lewis. As a
result, we ordered a remand “for resentencing in accor-
dance with Shepard and Lewis.” Hagenow, 423 F.3d
at 645.
We conclude that the district court did not err when, on
remand, it allowed the government to introduce the plea
colloquy transcript for the first time. As a general matter,
we have been hesitant to allow the government, the
party with the burden of proof on a sentencing enhance-
ment, a second opportunity to present evidence in sup-
port of that enhancement. Noble, 367 F.3d at 682; United
States v. Wyss, 147 F.3d 631, 633 (7th Cir. 1998); see also
United States v. Roach, 372 F.3d 907, 909-10 (7th Cir.
2004) (applying same principle to defendants), vacated
on other grounds, 543 U.S. 1180 (2005). We have rejected,
however, the broad proposition that a party may never
offer new evidence on a sentencing remand. United States
v. Sumner, 325 F.3d 884, 888 (7th Cir. 2003); cf. United
States v. Leonzo, 50 F.3d 1086, 1088 (D.C. Cir. 1995)
No. 05-4443 5
(stating government would not have a second opportunity
to offer new evidence on remand in support of loss calcula-
tion, as government had burden of proof and “[n]o
special circumstances” justified its failure to sustain its
burden at initial sentencing hearing). In Sumner, we held
that the government could introduce new evidence on a
sentencing remand that pertained to issues the de-
fendant had not raised at the initial sentencing, but that
we considered on plain error review. 325 F.3d at 888.
The government suggests that intervening case law
making the form of proof it had first offered unacceptable
constitutes another circumstance to justify the ad-
mission of additional evidence on a sentencing remand.
We agree. When in Sumner we allowed the government to
present on remand additional evidence relevant to
issues not raised at the initial sentencing, we reasoned
that an absolute bar on new evidence “would require the
government to anticipate and present evidence on every
conceivable issue that might later be found to constitute
plain error on appeal. This would impose an impossible
burden on the government.” 325 F.3d at 888-89. So too
here. At the time of the initial sentencing, no controlling
case law deemed the government’s method of proof im-
proper. Accepting Hagenow’s argument that even so, the
government could not introduce new evidence on remand,
would mean that the government would need to intro-
duce every possible form of proof at sentencing to ensure
that an enhancement would stand. That is an unreason-
able burden to impose on the government, and we decline
to do so.
Our decisions in Wyss and Noble, to which Hagenow
points, do not counsel otherwise. In both cases, the scope
of acceptable evidence was clear at the time the govern-
ment initially failed to carry its burden of proof. See Wyss,
147 F.3d at 633 (stating that government had only one
opportunity to prove drug quantity for sentencing pur-
6 No. 05-4443
poses); Noble, 367 F.3d at 682 (same). In fact, when we
held in Noble that the government should not have been
afforded an opportunity to present additional evidence of
drug quantity on remand, we reasoned: “The government
knew what it was required to introduce to meet its bur-
den, and . . . the government failed to do so.” Noble, 367
F.3d at 682.
Here, despite Hagenow’s argument to the contrary, the
government did not know at the time of the initial sen-
tencing that the evidence it presented would not withstand
later review. First, the Supreme Court’s decision in
Taylor v. United States, 495 U.S. 575 (1990), did not
provide a list of acceptable evidence, nor did it give
guidance as to the types of evidence that would be unac-
ceptable. See Shepard, 544 U.S. at 20 (“The [Taylor] Court
did not . . . purport to limit adequate judicial record
evidence strictly to charges and instructions . . . .”). And
our decision in United States v. Cole, 298 F.3d 659 (7th
Cir. 2002), did not resolve this ambiguity. There, we
approved the government’s use of a plea transcript to
show that a defendant’s prior conviction was for a “crime
of violence.” 298 F.3d at 663-64. We did not, however,
delineate between acceptable and unacceptable evidence,
nor did we explain the circumstances under which evi-
dence might be unacceptable. As a result, although
Hagenow is correct that, at the time of the initial sen-
tencing hearing, the government knew it could introduce
the plea colloquy transcript from Hagenow’s state
court conviction, nothing at the time dictated that the
Affidavit to Support Probable Cause attached to the
information was not also acceptable to demonstrate
that the prior conviction was for a crime of violence.
We are satisfied that only after the initial sentencing
did case law make clear that the affidavit should not
have been utilized to demonstrate that Hagenow’s prior
conviction constituted a crime of violence for the purposes
No. 05-4443 7
of a sentencing enhancement. We believe this intervening
case law warrants a departure from the general rule that
the government does not receive multiple opportunities
to present evidence in support of a sentencing enhance-
ment. As a result, the district court did not err when it
allowed the government to introduce the plea colloquy
for the first time on remand.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-7-07