United States v. Shaffers, No. 21-1134 (7th Cir. 2022)
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Around midnight, four people were in Shaffers' car, with Shaffers in the driver’s seat, smoking and listening to music while parked. Chicago Police Officers Streeper and Bruno heard loud music coming from the car and smelled marijuana. They blocked Shaffers' car with their car, then approached, identified themselves, and instructed the occupants to put their hands up. Streeper testified that Shaffers initially failed to comply and made “furtive movements with his hands below the [driver’s] seat.” Shaffers fled. Streeper recovered a gun from the floorboard between the driver’s seat and the console. Months later, Shaffers was arrested while appearing in state court for a traffic infraction.
Shaffers was charged as a felon in possession of a firearm, 18 U.S.C. 922(g)(1). Denying Shaffers’ motion to suppress, the court concluded that the officers’ approach was a seizure because Shaffers could not move his car and a reasonable person would not have felt free to leave but that the seizure was permissible under "Terry" because the officers had reasonable suspicion. After a mistrial, obstruction of justice charges were added based on Shaffers’ attempts to influence witness testimony. The Seventh Circuit upheld his convictions, rejecting arguments that the gun should have been suppressed; that Shaffers’ Confrontation Clause rights were violated by admitting a witness’s grand jury testimony, that the evidence was insufficient to support his conviction; and that his prior aggravated assault conviction was improperly considered a “crime of violence” at sentencing.
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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 Sha ers was charged with possession of a rearm by a convicted felon after a gun was recovered from his car during an encounter with Chicago police. At his rst trial, the jury deadlocked and the district court declared a mistrial. Sha ers was then tried again, with an obstruction of justice count added based on his attempts to in uence witness testimony before the rst trial. He was convicted on both counts. 2 No. 21-1134 Sha ers 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 insu cient to support his conviction; 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 Sha ers rst 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 conclusions de novo and its factual ndings 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, Sha ers 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 Sha ers in the driver’s seat and Fulton in the passenger’s seat—and began smoking cigarettes and listening to music while parked. Meanwhile, Chicago Police O cers Jason Streeper and Brendan Bruno were patrolling nearby in an unmarked police car. As they drove down an alley, they heard loud music coming from Sha ers’ car and smelled marijuana. They stopped directly behind the car, blocking it from pulling out. The of cers then approached the car, identi ed themselves, and instructed the occupants to put their hands in the air. O cer Streeper had his gun drawn. He testi ed that Sha ers 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.” Sha ers eventually put his hands on the steering wheel, but he then ed before the o cers could detain him. While O cer Bruno unsuccessfully gave chase, O cer Streeper recovered a gun from the oorboard between the driver’s seat and the console. Several months later, Sha ers was taken into custody when he appeared in state court for a tra c infraction, and he was eventually charged in federal court with being a felon in possession of a rearm in violation of 18 U.S.C. § 922(g)(1). Sha ers led a motion to suppress the gun before his rst trial on the felon-in-possession charge. After holding an evidentiary hearing, the district court concluded that the o cers’ initial approach was a seizure because Sha ers 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 o cers 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) Sha ers’ furtive movements and failure to immediately raise his hands. The court therefore denied Sha ers’ motion to suppress. B. Analysis On appeal, the government no longer disputes that the of cers’ 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 o cer conducting an investigatory stop must have “reasonable suspicion that ‘criminal activity may be afoot.’” United States v. Watson, 900 F.3d 892, 894 (7th Cir. 2018), quoting 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 o cer 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 O cers Streeper and Bruno had a reasonable suspicion to justify the stop. At the moment they blocked in Sha ers’ car, the o cers 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, O cer Streeper testi ed that he heard “loud music” with “a lot of bass” coming from the car. O cer 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 appeal. No. 21-1134 5 that the music “was loud enough that we heard it on approach.” Even Westberry and Butler testi ed that the music was loud. Based on these facts, the o cers had an articulable, objective basis for believing that the occupants of Sha ers’ car were violating the noise ordinance. To compound the o cers’ suspicion, they also smelled marijuana as they drove down the alley. Contrary to Sha ers’ assertion, the o cers did not have merely a “generalized suspicion that someone in the alley possessed cannabis.” Both of cers speci cally testi ed that they smelled marijuana coming from the vicinity of Sha ers’ car. In addition, Butler testi ed 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 o cers 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 o cer who smells marijuana 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 o cers had a su cient basis to block Sha ers’ car and investigate.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 approaching 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, Sha ers 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 Shaffers’ car on the night of October 15, 2016. After Sha ers ed and O cer 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 testi ed 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. Sha ers was then arrested and charged in June 2017. Almost two years later, during Sha ers’ rst trial, Fulton testi ed 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 ying 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, Sha ers’ 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 concluding 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 Sha ers’ second trial. Fulton continued to disclaim any memory of the events in question or of testifying before the grand jury. Over a defense objection, the district court again permitted her grand jury testimony to be used as substantive evidence. This time, Fulton read the testimony herself. Sha ers’ counsel then cross-examined 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 con rm that the government was paying for her airline ticket and hotel during the trial, which she did. During closing argument, Sha ers’ counsel emphasized several times that Fulton “chose not to remember” the relevant events. B. Analysis Sha ers argues that the district court’s decision to allow the grand jury testimony as substantive evidence violated the Confrontation Clause. Because Sha ers had an opportunity to cross-examine Fulton and expose weaknesses in her answers to the jury, we conclude that admission of her grand jury testimony 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 witnesses against him.” U.S. Const. amend. VI. This guarantee has long been understood to include “the right of cross-examination.” Douglas v. Alabama, 380 U.S. 415, 418 (1965). The Confrontation Clause guarantees only “an opportunity for e ective cross-examination, not cross-examination that is e ective 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 forgetfulness, confusion, or evasion.” Delaware v. Fensterer, 474 U.S. 15, 21–22 (1985). Instead, “the Confrontation Clause is generally satis ed when the defense is given a full and fair opportunity to probe and expose these in rmities through cross-examination, thereby calling to the attention of the fact nder the reasons 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 incident, he identi ed defendant Owens as the assailant. At trial, the witness testi ed that he recalled identifying Owens during the interview, but he could not remember seeing his attacker. The Court held that the witness’s identi cation of Owens could be admitted because the defendant had the opportunity “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 counsel’s closing argument, in fact, had emphasized the witness’s memory loss and the possibility that his identi cation of Owens 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 guarantee.” Id. at 560. No. 21-1134 9 That reasoning leads us to uphold the admission of Fulton’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. Sha ers’ counsel had the opportunity to probe Fulton’s lack of memory and to try to cast doubt on the reliability of her testimony. Counsel took full advantage of that opportunity at both trials, asking about her prior criminal history, 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 remember the events in question—just as Owens’ lawyer attacked the witness’s memory loss and argued that his testimony was not credible, id. at 560. Sha ers was therefore able to take advantage of “realistic weapons” to undermine Fulton’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). Sha ers’ attempts to distinguish Owens are not persuasive. He notes that the witness there su ered only partial memory loss, as he was able to testify about parts of the attack and about the interview where he identi ed 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 testimony incriminated one of the defendants. At trial, that witness 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 di erent from Owens because the witness could not even remember making the identi cation. We concluded that the di erence was immaterial, holding that the Confrontation Clause is satis ed 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. Sha ers 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 testimony: Q. Ms. Fulton, I’m sorry. Have you seen this transcript before? A. Yes. Q. And this is a transcript of your testimony before the grand jury on May 11th of 2017? A. Yes. Sha ers also relies on Douglas, but the witness in that case invoked the privilege against self-incrimination and then refused to answer when repeatedly asked, “Did you make that statement?” 380 U.S. at 416–17. Fulton, by contrast, acknowledged that the transcript of the grand jury testimony was hers but said she could not recall the underlying substance. She testi ed 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 Sha ers’ proposed distinctions. The guidance of Owens and Keeter controls here. Nor are we convinced by Sha ers’ 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 Confrontation 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 admission of his out-of-court statements does not create a confrontation problem.”). After Crawford, we have continued to follow 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 Sha ers 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 government 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 undermine cross-examination but that the same e ect “is not produced by the witness’ assertion of memory loss—which … is often the very result sought to be produced by cross-examination, and can be e ective in destroying the force of the prior statement”). Fulton responded to a number of questions about her memory loss, and Sha ers’ counsel had the opportunity to probe her explanation and attack her credibility before the jury. Under those circumstances, the admission of Fulton’s grand jury testimony did not violate the Confrontation Clause. 3 III. Su ciency of the Evidence Next, Sha ers argues that there was insu cient evidence to support his conviction under the felon-in-possession statute. In reviewing that question, “we a ord 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 reasonable jury could nd 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 bene t of con icts in the evidence and reasonable inferences from the evidence. While we have said that this standard poses a signi cant 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 3 Because we find no Confrontation Clause violation, we do not address 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 Sha ers, 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 a ected 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 Sha ers possessed the gun, relying instead on a theory of constructive possession. To prove constructive possession, the government had to show a “nexus” connecting Sha ers 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 contraband, found on that property.” United States v. Gri n, 684 F.3d 691, 695 (7th Cir. 2012). In the absence of exclusive control, 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 Gri n, 684 F.3d at 695. Sha ers argues that the government failed to establish a su cient 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 connection with [an impermissible item], proof of motive, a gesture implying control, evasive conduct, or a statement indicating involvement in an enterprise is enough to sustain a guilty verdict.” Id. (alteration in original), quoting Gri n, 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, Sha ers was hunched over and making furtive movements with his hands near the oorboard as the o cers approached the car. O cer Streeper testi ed that he thought Sha ers “was trying to conceal contraband or a weapon.” Moments later, O cer Streeper recovered the gun from the driver’s side oorboard, the same place where Sha ers had been making furtive movements with his hands. The jury could reasonably conclude that Sha ers had been trying to conceal the gun. 4 Second, Sha ers ed from the o cers. In Gri n, another felon-in-possession case, we reiterated that mere proximity to contraband is not a su cient nexus but recognized that “a defendant’s ight … is su cient 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 ed a defendant’s ight as the ‘something more’ su cient 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 government “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, Sha ers insists that he ed 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 explanation and to conclude instead that Sha ers ed because he knew the police would discover the gun. In addition to the furtive movements and ight, Sha ers lied to law enforcement o cials after his arrest and attempted to in uence witness testimony before trial. According to the ATF agent who conducted the post-arrest interview, Sha ers said that he was at home on the night in question. On crossexamination, Sha ers admitted that he had lied. Furthermore, the jury heard audio recordings of telephone calls that Shaffers made after his arrest to Fulton and to Paris Madlock, the mother of his child. Madlock testi ed that Sha ers wanted to pay witnesses to say he had not been present on the night in question. This evidence further supported the jury’s nding that Sha ers possessed the gun. See Davis, 896 F.3d at 791 (relying in part on defendant’s attempt to in uence witness testimony in nding su cient evidence to support constructive possession). The evidence was su cient to support Sha ers’ conviction. IV. Sentencing Finally, Sha ers challenges his sentence on the ground that the district court improperly treated his prior aggravated assault conviction as a “crime of violence” under the Sentencing 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 o ense 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 de ned by reference to another section of the Guidelines, which states that a crime of violence is: any o ense under federal or state law, punishable 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 person of another, or (2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex o ense, robbery, arson, extortion, or the use or unlawful possession of a rearm described in 26 U.S.C. § 5845(a) or explosive material as de ned in 18 U.S.C. § 841(c). § 4B1.2(a). We conclude that the district court correctly classi ed the prior conviction as a crime of violence under the elements clause in § 4B1.2(a)(1). We need not decide whether it would also be a crime of violence under the enumerated offenses clause in § 4B1.2(a)(2). See United States v. Carter, 961 F.3d 953, 957 (7th Cir. 2020) (taking same approach in analyzing Iowa aggravated assault statute). The parties agree that Sha ers’ 2012 conviction for aggravated discharge of a rearm quali ed as a crime of violence. The dispute is over Sha ers’ 2008 conviction for aggravated assault. If it counts as a crime of violence, his base o ense No. 21-1134 17 level is 26; if it does not, his base o ense level would be only 22. The district court found that the aggravated assault conviction quali ed. B. The Categorical Approach To determine whether a prior o ense 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 conviction to determine whether they match the guideline de nition of a crime of violence. Id. at 697. “If the state law de nes an o ense more broadly than the Guidelines, the prior conviction 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 quali es.” Carter, 961 F.3d at 956. The analysis requires another step if the statute of conviction contains multiple parts. Some statutes include multiple o enses with their own sets of elements, while others include multiple “means” of satisfying speci c elements. Statutes that fall into the rst category are “divisible,” meaning that the sentencing court must determine which one of the multiple o enses was committed. Carter, 961 F.3d at 956. Accordingly, the court may look to “a limited class of documents (for example, 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 considering those materials—known as Shepard documents—the court compares the crime of conviction to the guideline de nition to determine whether the prior o ense 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. Sha ers’ Prior Conviction Sha ers pleaded guilty to aggravated assault in 2008. At the time, Illinois law provided: “A person commits an aggravated assault when, in committing an assault, he … [k]nows the individual assaulted to be a peace o cer … engaged in the execution of any of his o cial duties.” 720 ILCS 5/122(a)(6) (2008). 6 The term “assault” was de ned 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 de nition of “battery” appeared in yet another provision: “A person commits battery if he intentionally or knowingly without legal justi cation 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 rst 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 5 In 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 Sha ers’ 2008 conviction. The court acknowledged that it was permitted “to look at a limited universe of documents to determine not how the o ense was committed but … which prong of the statute is involved here.” From the plea colloquy, the court concluded that Shaffers’ conviction was based on the rst 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 Sha ers had pointed a rearm in the direction of police o cers. As a result, the court found that Sha ers’ prior conviction quali ed as a crime of violence and calculated his base o ense level accordingly. Sha ers 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 o cers 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 Sha ers, had a prior conviction under the Illinois aggravated assault statute. Vesey, 966 F.3d at 695. Because that statute incorporates the divisible Illinois 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 o cer, so the court concluded that he had been convicted 20 No. 21-1134 under the rst prong of the statute and therefore classi ed the conviction as a crime of violence. We a rmed. 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 Sha ers 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 de nition 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 modi ed categorical approach for aggravated assault conviction because underlying assault statute was divisible); United States v. Lynn, 851 F.3d 786, 796–97 (7th Cir. 2017) (applying modi ed categorical approach for aggravated battery conviction 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 elements the state needed to prove to convict Sha ers of aggravated assault. Mathis did not impose such an illogical constraint 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 determine 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 Sha ers’ aggravated assault conviction No. 21-1134 21 involved the rst prong of the battery statute—fear of causing bodily harm—because he had pointed a gun at the o cers. 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 (consulting Shepard documents where Iowa aggravated assault statute incorporated de nition of assault and assault statute itself was divisible); Lynn, 851 F.3d at 796–97 (consulting Shepard documents where Illinois aggravated battery statute incorporated de nition of battery and battery statute itself was divisible). The classi cation of Sha ers’ aggravated assault conviction as a crime of violence was legally correct. AFFIRMED.
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