United States v. Ramone Shaffers

In the United States Court of Appeals For the Seventh Circuit ____________________ No. 21-1134 UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RAMONE SHAFFERS, Defendant-Appellant. ____________________ Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:17-cr-00438-1 — John J. Tharp, Jr., Judge. ____________________ ARGUED NOVEMBER 1, 2021 — DECIDED JANUARY 5, 2022 ____________________ Before HAMILTON, SCUDDER, and ST. EVE, Circuit Judges. HAMILTON, Circuit Judge. Ramone Shaﬀers was charged with possession of a ﬁrearm by a convicted felon after a gun was recovered from his car during an encounter with Chicago police. At his ﬁrst trial, the jury deadlocked and the district court declared a mistrial. Shaﬀers was then tried again, with an obstruction of justice count added based on his attempts to inﬂuence witness testimony before the ﬁrst trial. He was con- victed on both counts. 2 No. 21-1134 Shaﬀers now appeals his felon-in-possession conviction on four separate grounds. He argues that the gun should have been suppressed; that his Confrontation Clause rights were violated by admitting a witness’s grand jury testimony; that the evidence of possession was insuﬃcient to support his con- viction; and that his prior aggravated assault conviction was improperly considered a “crime of violence” at sentencing. We reject all four challenges. I. Motion to Suppress Shaﬀers ﬁrst argues that the gun recovered from his car should have been suppressed as the product of an unlawful stop. On that issue, we review the district court’s legal conclu- sions de novo and its factual ﬁndings for clear error. United States v. Wood, 16 F.4th 529, 532–33 (7th Cir. 2021). A. Factual and Procedural Background On the night of October 15, 2016, Shaﬀers attended a party in Chicago. He left around midnight with three people: Talieta Fulton, Cornell Westberry, and Shirley Butler. They all got into his car—with Shaﬀers in the driver’s seat and Fulton in the passenger’s seat—and began smoking cigarettes and lis- tening to music while parked. Meanwhile, Chicago Police Oﬃcers Jason Streeper and Brendan Bruno were patrolling nearby in an unmarked police car. As they drove down an alley, they heard loud music com- ing from Shaﬀers’ car and smelled marijuana. They stopped directly behind the car, blocking it from pulling out. The of- ﬁcers then approached the car, identiﬁed themselves, and in- structed the occupants to put their hands in the air. Oﬃcer Streeper had his gun drawn. He testiﬁed that Shaﬀers initially failed to comply with his directions and instead was “making No. 21-1134 3 furtive movements with his hands below the [driver’s] seat.” Shaﬀers eventually put his hands on the steering wheel, but he then ﬂed before the oﬃcers could detain him. While Oﬃcer Bruno unsuccessfully gave chase, Oﬃcer Streeper recovered a gun from the ﬂoorboard between the driver’s seat and the console. Several months later, Shaﬀers was taken into custody when he appeared in state court for a traﬃc infraction, and he was eventually charged in federal court with being a felon in possession of a ﬁrearm in violation of 18 U.S.C. § 922(g)(1). Shaﬀers ﬁled a motion to suppress the gun before his ﬁrst trial on the felon-in-possession charge. After holding an evi- dentiary hearing, the district court concluded that the oﬃcers’ initial approach was a seizure because Shaﬀers could not move his car and a reasonable person would not have felt free to leave. The court also held, however, that the seizure was permissible under Terry v. Ohio, 392 U.S. 1 (1968). In the court’s view, the oﬃcers had reasonable suspicion for a Terry stop based on the combination of (1) the car’s location in an alley in a high-crime area, playing loud music in violation of a local noise ordinance; (2) the smell of marijuana around the car; and (3) Shaﬀers’ furtive movements and failure to imme- diately raise his hands. The court therefore denied Shaﬀers’ motion to suppress. B. Analysis On appeal, the government no longer disputes that the of- ﬁcers’ actions constituted a seizure. The question is whether 4 No. 21-1134 the stop violated the Fourth Amendment. We agree with the district court’s conclusion that it did not. 1 The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. Accordingly, an oﬃcer conducting an investigatory stop must have “rea- sonable suspicion that ‘criminal activity may be afoot.’” United States v. Watson, 900 F.3d 892, 894 (7th Cir. 2018), quot- ing Terry, 392 U.S. at 30. Reasonable suspicion requires “more than a hunch but less than probable cause.” United States v. Wilson, 963 F.3d 701, 703 (7th Cir. 2020). Our analysis focuses on “the totality of the circumstances” and asks whether the oﬃcer had “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” Navarette v. California, 572 U.S. 393, 396–97 (2014), quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981). Applying that standard here, we conclude that Oﬃcers Streeper and Bruno had a reasonable suspicion to justify the stop. At the moment they blocked in Shaﬀers’ car, the oﬃcers had a reasonable, articulable suspicion that the occupants were violating a Chicago noise ordinance. As relevant here, the ordinance prohibits using a radio “to generate any sound, for the purpose of communication or entertainment, that is louder than average conversational level at a distance of 100 feet or more” between 10:00 p.m. and 8:00 a.m. Chi. Mun. Code § 8-32-070(b). At the suppression hearing, Oﬃcer Streeper testiﬁed that he heard “loud music” with “a lot of bass” coming from the car. Oﬃcer Bruno agreed, testifying 1 In the district court, Shaffers also challenged the warrantless search of his car as unreasonable, but he has not pursued that argument on ap- peal. No. 21-1134 5 that the music “was loud enough that we heard it on ap- proach.” Even Westberry and Butler testiﬁed that the music was loud. Based on these facts, the oﬃcers had an articulable, objective basis for believing that the occupants of Shaﬀers’ car were violating the noise ordinance. To compound the oﬃcers’ suspicion, they also smelled marijuana as they drove down the alley. Contrary to Shaﬀers’ assertion, the oﬃcers did not have merely a “generalized sus- picion that someone in the alley possessed cannabis.” Both of- ﬁcers speciﬁcally testiﬁed that they smelled marijuana com- ing from the vicinity of Shaﬀers’ car. In addition, Butler testi- ﬁed that she and Westberry had smoked marijuana on a porch before leaving the party, that she had the marijuana joint in her pocket when she got into the car, and that she then threw the joint out the window. At the time, Illinois prohibited even recreational use or possession of marijuana. The oﬃcers therefore had reason to believe that the occupants of the car were violating Illinois law. Cf. United States v. Franklin, 547 F.3d 726, 733 (7th Cir. 2008) (“A police oﬃcer who smells ma- rijuana coming from a car has probable cause to search that car.”). Based on the totality of the circumstances—including the combination of the loud music and the smell of marijuana— the oﬃcers had a suﬃcient basis to block Shaﬀers’ car and in- vestigate.2 2 Both the district court and the government also relied on Shaffers’ movements around the floorboard as an additional justification for the stop. Those movements, however, occurred as the officers were approach- ing the car—after the seizure had occurred. We have made clear that the reasonableness of a stop turns on “what facts were known to [the officer] at the time she stopped the vehicle,” United States v. Jackson, 962 F.3d 353, 6 No. 21-1134 II. Confrontation Clause Second, Shaﬀers challenges his conviction on the ground that the admission of Talieta Fulton’s grand jury testimony as substantive evidence violated the Confrontation Clause of the Sixth Amendment. We review that question de novo. United States v. Norwood, 982 F.3d 1032, 1042 (7th Cir. 2020). A. Factual and Procedural Background As noted above, Fulton was in the passenger’s seat of Shaf- fers’ car on the night of October 15, 2016. After Shaﬀers ﬂed and Oﬃcer Streeper discovered the gun, Fulton and the other two passengers were arrested and taken to the police station. They were eventually released without being charged. In May 2017, Fulton appeared before a federal grand jury. She testiﬁed that she had not known there was a gun in the car that night, that she had seen the police remove the gun from under the driver’s seat, and that the gun was not hers. Shaﬀers was then arrested and charged in June 2017. Almost two years later, during Shaﬀers’ ﬁrst trial, Fulton testiﬁed that she had no memory of the events of October 15. She also said she did not recall her testimony before the grand jury, although she vaguely remembered the government’s ﬂy- ing her to Chicago. Over the defense’s objection, the district court allowed the government to introduce Fulton’s grand jury testimony as a prior inconsistent statement under Federal Rule of Evidence 801(d)(1)(A). Before the testimony was read, Shaﬀers’ counsel cross-examined Fulton, asking whether her lack of memory was caused by a medical condition or a fear 358 (7th Cir. 2020), so we do not consider Shaffers’ movements in conclud- ing that the stop was permissible at the outset. No. 21-1134 7 of prosecution. He also asked about her prior criminal history. An ATF agent then read Fulton’s grand jury testimony aloud. A similar process played out in Shaﬀers’ second trial. Ful- ton continued to disclaim any memory of the events in ques- tion or of testifying before the grand jury. Over a defense ob- jection, the district court again permitted her grand jury testi- mony to be used as substantive evidence. This time, Fulton read the testimony herself. Shaﬀers’ counsel then cross-exam- ined her. He inquired into her lack of memory and asked if it was because she had been drinking on the night of her arrest. Counsel also questioned whether Fulton was “claiming not to remember anything” because she feared prosecution. And he asked her to conﬁrm that the government was paying for her airline ticket and hotel during the trial, which she did. During closing argument, Shaﬀers’ counsel emphasized several times that Fulton “chose not to remember” the relevant events. B. Analysis Shaﬀers argues that the district court’s decision to allow the grand jury testimony as substantive evidence violated the Confrontation Clause. Because Shaﬀers had an opportunity to cross-examine Fulton and expose weaknesses in her answers to the jury, we conclude that admission of her grand jury tes- timony did not violate the Confrontation Clause. In criminal cases, the Sixth Amendment provides that “the accused shall enjoy the right … to be confronted with the wit- nesses against him.” U.S. Const. amend. VI. This guarantee has long been understood to include “the right of cross-exam- ination.” Douglas v. Alabama, 380 U.S. 415, 418 (1965). The Con- frontation Clause guarantees only “an opportunity for eﬀective cross-examination, not cross-examination that is eﬀective in 8 No. 21-1134 whatever way, and to whatever extent, the defense might wish.” United States v. Owens, 484 U.S. 554, 559 (1988), quoting Kentucky v. Stincer, 482 U.S. 730, 739 (1987). The Clause does not guarantee that “every witness called by the prosecution will refrain from giving testimony that is marred by forgetful- ness, confusion, or evasion.” Delaware v. Fensterer, 474 U.S. 15, 21–22 (1985). Instead, “the Confrontation Clause is generally satisﬁed when the defense is given a full and fair opportunity to probe and expose these inﬁrmities through cross-examina- tion, thereby calling to the attention of the factﬁnder the rea- sons for giving scant weight to the witness’ testimony.” Id. at 22. Our analysis begins with the Supreme Court’s decision in Owens. In that case, the witness was a prison counselor who had been the victim of a violent assault. 484 U.S. at 556. In an interview with an FBI agent almost one month after the inci- dent, he identiﬁed defendant Owens as the assailant. At trial, the witness testiﬁed that he recalled identifying Owens dur- ing the interview, but he could not remember seeing his at- tacker. The Court held that the witness’s identiﬁcation of Ow- ens could be admitted because the defendant had the oppor- tunity “to bring out such matters as the witness’ bias, his lack of care and attentiveness, his poor eyesight, and even … the very fact that he has a bad memory.” Id. at 559. Defense coun- sel’s closing argument, in fact, had emphasized the witness’s memory loss and the possibility that his identiﬁcation of Ow- ens was unreliable. While such attacks on the witness’s memory may not always succeed, the Court reiterated that “successful cross-examination is not the constitutional guar- antee.” Id. at 560. No. 21-1134 9 That reasoning leads us to uphold the admission of Ful- ton’s grand jury testimony. Here, as in Owens, the defense could not elicit the foundation for the witness’s past belief, “but other means of impugning the belief [were] available.” 484 U.S at 559. Shaﬀers’ counsel had the opportunity to probe Fulton’s lack of memory and to try to cast doubt on the relia- bility of her testimony. Counsel took full advantage of that opportunity at both trials, asking about her prior criminal his- tory, the reasons for her lack of memory, and her potential bias in favor of the government. During closing argument, counsel repeatedly asserted that Fulton had chosen not to re- member the events in question—just as Owens’ lawyer at- tacked the witness’s memory loss and argued that his testi- mony was not credible, id. at 560. Shaﬀers was therefore able to take advantage of “realistic weapons” to undermine Ful- ton’s credibility. Id.; see also United States v. Cooper, 767 F.3d 721, 728 (7th Cir. 2014) (explaining admission of grand jury testimony where witness claimed at trial that she could not recall the statements or the underlying events). Shaﬀers’ attempts to distinguish Owens are not persuasive. He notes that the witness there suﬀered only partial memory loss, as he was able to testify about parts of the attack and about the interview where he identiﬁed Owens. 484 U.S. at 556. But we rejected that distinction in United States v. Keeter, 130 F.3d 297 (7th Cir. 1997), where a witness’s grand jury tes- timony incriminated one of the defendants. At trial, that wit- ness claimed that he did not remember any of the underlying events or his appearance before the grand jury. Id. at 302. The defendant argued on appeal that his case was diﬀerent from Owens because the witness could not even remember making the identiﬁcation. We concluded that the diﬀerence was im- material, holding that the Confrontation Clause is satisﬁed 10 No. 21-1134 “when the witness must look the accused in the eye in court; shortcomings in the declarant’s memory may be made known to the jury.” Id. Shaﬀers did not address Keeter in his briefs but suggested at oral argument that it is distinguishable because the witness acknowledged the prior statement as his own, whereas Fulton did not. The record, however, appears to contradict that point. Fulton may not have remembered what she said before the grand jury, but she did identify the transcript of her testi- mony: Q. Ms. Fulton, I’m sorry. Have you seen this transcript before? A. Yes. Q. And this is a transcript of your testimony be- fore the grand jury on May 11th of 2017? A. Yes. Shaﬀers also relies on Douglas, but the witness in that case in- voked the privilege against self-incrimination and then re- fused to answer when repeatedly asked, “Did you make that statement?” 380 U.S. at 416–17. Fulton, by contrast, acknowl- edged that the transcript of the grand jury testimony was hers but said she could not recall the underlying substance. She testiﬁed that she remembered “coming out here [to Chicago]” and said: “I know I came because there was an action, but what was spoken, I don’t remember.” We therefore decline to adopt Shaﬀers’ proposed distinctions. The guidance of Owens and Keeter controls here. Nor are we convinced by Shaﬀers’ assertion that Crawford v. Washington, 541 U.S. 36 (2004), changed the relevant No. 21-1134 11 analysis. In that case, the Supreme Court reiterated that when a witness “appears for cross-examination at trial, the Confron- tation Clause places no constraints at all on the use of his prior testimonial statements. … The Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it.” Id. at 60 n.9; accord, California v. Green, 399 U.S. 149, 162 (1970) (“[W]here the declarant is not absent, but is present to testify and to submit to cross-examination, our cases, if anything, support the conclusion that the admis- sion of his out-of-court statements does not create a confron- tation problem.”). After Crawford, we have continued to fol- low the Owens approach to cases of claimed memory loss. See, e.g., Cookson v. Schwartz, 556 F.3d 647, 652 (7th Cir. 2009) (“We agree with the State that Owens and Keeter are dispositive here.”); United States v. Ghilarducci, 480 F.3d 542, 548–49 (7th Cir. 2007) (relying on both Owens and Fensterer). So while Crawford was an important milestone in Confrontation Clause jurisprudence, we do not read the decision as undermining our established analysis in cases involving a witness’s claimed lack of memory about prior testimony. Finally, we agree with Shaﬀers that a witness’s physical presence in the courtroom alone is not enough to satisfy the Confrontation Clause, but no one argues otherwise. It is well established that the right of confrontation “means more than being allowed to confront the witness physically.” Davis v. Alaska, 415 U.S. 308, 315 (1974). At oral argument, the govern- ment properly conceded that there might be a constitutional violation if a witness took the stand for cross-examination and then refused to answer any questions at all. That situation would be more analogous to that of a witness who invokes the privilege against self-incrimination—but it is not what happened here. See Owens, 484 U.S. at 561–62 (noting that 12 No. 21-1134 witness’s assertion of privilege might impermissibly under- mine cross-examination but that the same eﬀect “is not pro- duced by the witness’ assertion of memory loss—which … is often the very result sought to be produced by cross-exami- nation, and can be eﬀective in destroying the force of the prior statement”). Fulton responded to a number of questions about her memory loss, and Shaﬀers’ counsel had the oppor- tunity to probe her explanation and attack her credibility be- fore the jury. Under those circumstances, the admission of Fulton’s grand jury testimony did not violate the Confronta- tion Clause. 3 III. Suﬃciency of the Evidence Next, Shaﬀers argues that there was insuﬃcient evidence to support his conviction under the felon-in-possession stat- ute. In reviewing that question, “we aﬀord great deference to a jury’s verdict of conviction.” United States v. Godinez, 7 F.4th 628, 638 (7th Cir. 2021). We will overturn a conviction only where “the record is devoid of evidence from which a reason- able jury could ﬁnd guilt beyond a reasonable doubt.” Id., quoting United States v. Khan, 937 F.3d 1042, 1055 (7th Cir. 2019). And we view the evidence in the light most favorable to the government, United States v. Wallace, 991 F.3d 810, 812 (7th Cir. 2021), which means giving the government the ben- eﬁt of conﬂicts in the evidence and reasonable inferences from the evidence. While we have said that this standard poses a signiﬁcant hurdle for a defendant, we have also made clear that “the height of the hurdle depends directly on the strength of the government’s evidence.” United States v. Moreno, 922 3Because we find no Confrontation Clause violation, we do not ad- dress the government’s argument that any such violation was harmless. No. 21-1134 13 F.3d 787, 793 (7th Cir. 2019), quoting United States v. Garcia, 919 F.3d 489, 496–97 (7th Cir. 2019). To convict Shaﬀers, the government needed to prove that (1) he had been convicted of a crime punishable by more than one year in prison, (2) he knowingly possessed the gun, (3) he knew he was in a category of persons barred from possessing a gun, and (4) the gun had traveled in or aﬀected interstate or foreign commerce. See 18 U.S.C. § 922(g)(1); United States v. Perryman, — F.4th —, —, 2021 WL 5937729, at *4 (7th Cir. Dec. 16, 2021). See generally Rehaif v. United States, 139 S. Ct. 2191 (2019) (holding that knowledge of status is element under § 922(g)). Only the second element—possession—is disputed here. The government did not present any physical proof that Shaﬀers possessed the gun, relying instead on a theory of con- structive possession. To prove constructive possession, the government had to show a “nexus” connecting Shaﬀers to the gun. United States v. Davis, 896 F.3d 784, 790 (7th Cir. 2018). Such a nexus is typically established in one of two ways. First, if the defendant had exclusive control over the property where the gun was found, then “a jury may reasonably infer that he constructively possessed the items, including the con- traband, found on that property.” United States v. Griﬃn, 684 F.3d 691, 695 (7th Cir. 2012). In the absence of exclusive con- trol, however, the government can also establish constructive possession by showing that the defendant had “a ‘substantial connection’ to the location where the [gun] was found.” Davis, 896 F.3d at 790, quoting Griﬃn, 684 F.3d at 695. Shaﬀers argues that the government failed to establish a suﬃcient nexus linking him to the gun, pointing out that three other people were in the car. It is true that mere proximity to 14 No. 21-1134 contraband is not enough to establish a nexus. Davis, 896 F.3d at 790. We have also concluded, however, that “proximity coupled with evidence of some other factor—including con- nection with [an impermissible item], proof of motive, a ges- ture implying control, evasive conduct, or a statement indi- cating involvement in an enterprise is enough to sustain a guilty verdict.” Id. (alteration in original), quoting Griﬃn, 684 F.3d at 696. At least two such factors were present here. First, viewing the evidence in the light most favorable to the government, Shaﬀers was hunched over and making furtive movements with his hands near the ﬂoorboard as the oﬃcers approached the car. Oﬃcer Streeper testiﬁed that he thought Shaﬀers “was trying to conceal contraband or a weapon.” Moments later, Oﬃcer Streeper recovered the gun from the driver’s side ﬂoorboard, the same place where Shaﬀers had been making furtive movements with his hands. The jury could reasonably conclude that Shaﬀers had been trying to conceal the gun. 4 Second, Shaﬀers ﬂed from the oﬃcers. In Griﬃn, another felon-in-possession case, we reiterated that mere proximity to contraband is not a suﬃcient nexus but recognized that “a de- fendant’s ﬂight … is suﬃcient to overcome the mere-presence principle.” 684 F.3d at 697; accord, e.g., United States v. Morris, 576 F.3d 661, 668 (7th Cir. 2009) (“We have previously identi- ﬁed a defendant’s ﬂight as the ‘something more’ suﬃcient to 4 Shaffers argues that none of the categories of evidence we viewed as sufficient to sustain a felon-in-possession conviction in United States v. Chairez are present here, but in that case we specifically noted that the gov- ernment “presented no evidence that Chairez … made a gesture towards the gun.” 33 F.3d 823, 825 (7th Cir. 1994). Here, according to Officer Streeper’s testimony, Shaffers did just that. No. 21-1134 15 overcome the mere presence doctrine.”), citing United States v. Starks, 309 F.3d 1017, 1025 (7th Cir. 2002). In response, Shaﬀers insists that he ﬂed because he feared trouble for driving on a revoked license. That assertion presented a question for the jury. It was not unreasonable for the jury to reject that expla- nation and to conclude instead that Shaﬀers ﬂed because he knew the police would discover the gun. In addition to the furtive movements and ﬂight, Shaﬀers lied to law enforcement oﬃcials after his arrest and attempted to inﬂuence witness testimony before trial. According to the ATF agent who conducted the post-arrest interview, Shaﬀers said that he was at home on the night in question. On cross- examination, Shaﬀers admitted that he had lied. Furthermore, the jury heard audio recordings of telephone calls that Shaf- fers made after his arrest to Fulton and to Paris Madlock, the mother of his child. Madlock testiﬁed that Shaﬀers wanted to pay witnesses to say he had not been present on the night in question. This evidence further supported the jury’s ﬁnding that Shaﬀers possessed the gun. See Davis, 896 F.3d at 791 (re- lying in part on defendant’s attempt to inﬂuence witness tes- timony in ﬁnding suﬃcient evidence to support constructive possession). The evidence was suﬃcient to support Shaﬀers’ conviction. IV. Sentencing Finally, Shaﬀers challenges his sentence on the ground that the district court improperly treated his prior aggravated assault conviction as a “crime of violence” under the Sentenc- ing Guidelines. We review de novo that issue of law. United States v. Williams, 949 F.3d 1056, 1066 (7th Cir. 2020). 16 No. 21-1134 A. Sentencing Proceedings Under the Sentencing Guidelines, the base oﬀense level for a person convicted under 18 U.S.C. § 922(g)(1) depends in part on whether he has any prior convictions for “crimes of violence.” U.S.S.G. § 2K2.1(a). That term is deﬁned by refer- ence to another section of the Guidelines, which states that a crime of violence is: any oﬀense under federal or state law, punisha- ble by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the per- son of another, or (2) is murder, voluntary manslaughter, kidnap- ping, aggravated assault, a forcible sex oﬀense, robbery, arson, extortion, or the use or unlawful possession of a ﬁrearm described in 26 U.S.C. § 5845(a) or explosive material as deﬁned in 18 U.S.C. § 841(c). § 4B1.2(a). We conclude that the district court correctly classi- ﬁed the prior conviction as a crime of violence under the ele- ments clause in § 4B1.2(a)(1). We need not decide whether it would also be a crime of violence under the enumerated of- fenses clause in § 4B1.2(a)(2). See United States v. Carter, 961 F.3d 953, 957 (7th Cir. 2020) (taking same approach in analyz- ing Iowa aggravated assault statute). The parties agree that Shaﬀers’ 2012 conviction for aggra- vated discharge of a ﬁrearm qualiﬁed as a crime of violence. The dispute is over Shaﬀers’ 2008 conviction for aggravated assault. If it counts as a crime of violence, his base oﬀense No. 21-1134 17 level is 26; if it does not, his base oﬀense level would be only 22. The district court found that the aggravated assault con- viction qualiﬁed. B. The Categorical Approach To determine whether a prior oﬀense is a crime of violence under the applicable version of the Guidelines, we apply the now-familiar categorical approach. United States v. Vesey, 966 F.3d 694, 696–97 (7th Cir. 2020). We focus not on the actual facts of the prior case but on the elements in the statute of con- viction to determine whether they match the guideline deﬁni- tion of a crime of violence. Id. at 697. “If the state law deﬁnes an oﬀense more broadly than the Guidelines, the prior con- viction does not qualify as a crime of violence; if the state-law elements match up with or are narrower than the Guidelines, however, then the prior conviction qualiﬁes.” Carter, 961 F.3d at 956. The analysis requires another step if the statute of convic- tion contains multiple parts. Some statutes include multiple oﬀenses with their own sets of elements, while others include multiple “means” of satisfying speciﬁc elements. Statutes that fall into the ﬁrst category are “divisible,” meaning that the sentencing court must determine which one of the multiple oﬀenses was committed. Carter, 961 F.3d at 956. Accordingly, the court may look to “a limited class of documents (for ex- ample, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Vesey, 966 F.3d at 697, quoting Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). After con- sidering those materials—known as Shepard documents—the court compares the crime of conviction to the guideline deﬁ- nition to determine whether the prior oﬀense is a crime of 18 No. 21-1134 violence. See Mathis, 136 S. Ct. at 2249; see also Shepard v. United States, 544 U.S. 13, 26 (2005). 5 C. Shaﬀers’ Prior Conviction Shaﬀers pleaded guilty to aggravated assault in 2008. At the time, Illinois law provided: “A person commits an aggra- vated assault when, in committing an assault, he … [k]nows the individual assaulted to be a peace oﬃcer … engaged in the execution of any of his oﬃcial duties.” 720 ILCS 5/12- 2(a)(6) (2008). 6 The term “assault” was deﬁned in a separate provision as engaging “in conduct which places another in reasonable apprehension of receiving a battery.” 720 ILCS 5/12-1(a) (2008). And in turn the deﬁnition of “battery” appeared in yet another provision: “A person commits battery if he intentionally or knowingly without legal justiﬁcation and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” 720 ILCS 5/12-3(a) (2008). We have previously held that the Illinois battery statute is divisible. Vesey, 966 F.3d at 697. A conviction under the ﬁrst clause—for causing bodily harm—has as an element “the use, attempted use, or threatened use of force” and thus is a crime of violence, while a conviction under the second clause does 5In 2018, the Sentencing Commission proposed amendments to the Guidelines that would forgo rigid adherence to the categorical method and instead allow a court to consider the conduct that formed the basis of the defendant’s prior conviction. Sentencing Guidelines for United States Courts, 83 Fed. Reg. 65400, 65407–11 (Dec. 20, 2018). As we have noted before, however, the Commission has been unable to follow through on that proposal because it has lacked a quorum for years. Bridges v. United States, 991 F.3d 793, 798 (7th Cir. 2021). 6 The relevant language now appears in 720 ILCS 5/12-2(b)(4.1). No. 21-1134 19 not. Id.; see also United States v. Montez, 858 F.3d 1085, 1092 (7th Cir. 2017). The district court here turned to the Shepard documents to determine which prong of the battery statute formed the basis of Shaﬀers’ 2008 conviction. The court acknowledged that it was permitted “to look at a limited uni- verse of documents to determine not how the oﬀense was committed but … which prong of the statute is involved here.” From the plea colloquy, the court concluded that Shaf- fers’ conviction was based on the ﬁrst prong of the battery statute because the charging language—which the sentencing court had read into the record at the time of the plea—stated that Shaﬀers had pointed a ﬁrearm in the direction of police oﬃcers. As a result, the court found that Shaﬀers’ prior con- viction qualiﬁed as a crime of violence and calculated his base oﬀense level accordingly. Shaﬀers argues that the district court erred in two ways. First, he contends that the court should not have analyzed the elements of the battery statute because it was not the statute of conviction. Second, he asserts that the district court should not have considered the fact that he pointed a gun at the oﬃc- ers because the categorical approach forbids such inquiry into the facts underlying the conviction. Both arguments are foreclosed by our decision in Vesey. The defendant in that case, like Shaﬀers, had a prior convic- tion under the Illinois aggravated assault statute. Vesey, 966 F.3d at 695. Because that statute incorporates the divisible Il- linois battery statute, the district court looked to the Shepard documents to ascertain which prong of the battery statute supported Vesey’s conviction. Id. at 697–98. Those documents showed that Vesey had swung a shower rod at a correctional oﬃcer, so the court concluded that he had been convicted 20 No. 21-1134 under the ﬁrst prong of the statute and therefore classiﬁed the conviction as a crime of violence. We aﬃrmed. That’s the same process the district court followed here. First, the court correctly recognized that the Illinois battery statute is divisible. It is true, as Shaﬀers points out, that Mathis instructs the sentencing court to focus on “the elements of the crime of conviction,” 136 S. Ct. at 2248, and that the crime of conviction here was aggravated assault—not battery. But where the crime of conviction incorporates the deﬁnition of another crime—as the Illinois aggravated assault statute does—we have often recognized that the sentencing court may need to evaluate whether that other statute is divisible. See Vesey, 966 F.3d at 697–98; Carter, 961 F.3d at 957 (applying modiﬁed categorical approach for aggravated assault convic- tion because underlying assault statute was divisible); United States v. Lynn, 851 F.3d 786, 796–97 (7th Cir. 2017) (applying modiﬁed categorical approach for aggravated battery convic- tion because underlying battery statute was divisible). If the district court had not analyzed the elements of the battery statute, it would not have had a complete picture of the ele- ments the state needed to prove to convict Shaﬀers of aggra- vated assault. Mathis did not impose such an illogical con- straint on sentencing courts. Nor did the district court err by considering the Shepard documents after determining that the Illinois battery statute was divisible. Mathis held that the sentencing court may look to materials such as the plea agreement and colloquy “to de- termine what crime, with what elements, a defendant was convicted of.” 136 S. Ct. at 2249. That is precisely what the district court did here. Based on the plea colloquy, the court concluded that Shaﬀers’ aggravated assault conviction No. 21-1134 21 involved the ﬁrst prong of the battery statute—fear of causing bodily harm—because he had pointed a gun at the oﬃcers. As in Vesey, the district court was permitted to look to the Shepard documents “to determine which prong of the battery statute formed the basis of the defendant’s conviction.” 966 F.3d at 698 (emphasis omitted); see also Carter, 961 F.3d at 957 (con- sulting Shepard documents where Iowa aggravated assault statute incorporated deﬁnition of assault and assault statute itself was divisible); Lynn, 851 F.3d at 796–97 (consulting Shep- ard documents where Illinois aggravated battery statute in- corporated deﬁnition of battery and battery statute itself was divisible). The classiﬁcation of Shaﬀers’ aggravated assault conviction as a crime of violence was legally correct. AFFIRMED.

United States v. Ramone Shaffers

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