United States v. Billups, Brian K.

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2037
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BRIAN K. BILLUPS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 06 CR 213—Barbara B. Crabb, Chief Judge.
____________
ARGUED APRIL 3, 2008—DECIDED JULY 29, 2008
____________
Before FLAUM, MANION, and TINDER, Circuit Judges.
TINDER, Circuit Judge. Brian Billups was convicted of a
drug crime and sentenced as a career offender under
U.S.S.G. § 4B1.1(a), based in part on a prior Wisconsin
felony conviction for false imprisonment. The career
offender designation increased Billups’s total offense
level and resulted in an advisory guidelines imprison-
ment range of 151-188 months. The district court sen-
tenced Billups to 151 months of imprisonment and three
years of supervised release. On appeal, Billups challenges
his career offender designation, arguing that his false
imprisonment conviction was not a “crime of violence”
2 No. 07-2037
under U.S.S.G. § 4B1.2(a). Because we agree with the
district court’s determination that the Wisconsin offense
constitutes a crime of violence, we affirm.
I. Background
Billups sold cocaine in Madison, Wisconsin. He pled
guilty, pursuant to a plea agreement, to possession with
intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)(1). The presentence report indicated, and the
district court found at sentencing, that Billups was a
career offender, U.S.S.G. § 4B1.1(a), based upon two
prior felony convictions, one for delivery of a controlled
substance and one for false imprisonment. Billups’s career
offender status increased his total offense level, which
incorporated a three-level reduction for acceptance of
responsibility under U.S.S.G. § 3E1.1, from 25 to 29. This
increase, when combined with Billups’s category VI
criminal history score, triggered a corresponding
increase in the recommended imprisonment range, from
110-137 to 151-188 months. The district court found that “a
sentence at the low end of the advisory guideline range
when coupled with the maximum term of supervised
release is reasonable, necessary, and sufficient to protect
the community, provide just punishment, and achieve
parity with the sentences of similarly situated offenders.”
Accordingly, the court sentenced Billups to 151 months
of imprisonment, three years of supervised release, and
a $100 special assessment.
Billups now appeals his sentence, contending that the
district court erred in classifying him as a career offender.
Because his instant offense was a controlled substance
offense, and because he was at least eighteen years old at
No. 07-2037 3
the time he committed the offense, Billups was properly
classified as a career offender if he had “at least two prior
felony convictions of either a crime of violence or a con-
trolled substance offense.” U.S.S.G. § 4B1.1(a). Billups
concedes that his prior felony conviction for delivery of
a controlled substance qualifies as a controlled sub-
stance offense. However, he contests the categorization of
his Wisconsin false imprisonment conviction, under Wis.
Stat. § 940.30, as a “crime of violence” for purposes of
§§ 4B1.1(a), 4B1.2(a). Thus, the sole issue on review is
the classification of Billups’s false imprisonment con-
viction as a crime of violence.
II. Discussion
A crime of violence is an offense punishable by more
than one year of imprisonment that: (1) “has as an element
the use, attempted use, or threatened use of physical
force against the person of another”; or (2) “is burglary of
a dwelling, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a). The crime-of-violence determination is a legal
inquiry into the nature of the conviction, not a factual
inquiry into the underlying conduct of the defendant.
United States v. Peters, 462 F.3d 716, 719 (7th Cir. 2006).
Thus, in determining whether a prior conviction qualifies
as a crime of violence, “we start—and usually will
end—with the elements of the statute of conviction and the
facts as stated in the charging document.” United States v.
Newbern, 479 F.3d 506, 508 (7th Cir. 2007) (citation omitted).
However, where the statutory elements and the charging
document fail to resolve the issue, we may then look to
additional sources, including the written plea agreement,
4 No. 07-2037
the transcript of the plea colloquy, admissions by the
defendant, or comparable judicial records. Peters, 462
F.3d at 719 (citing Shepard v. United States, 544 U.S. 13, 16
(2005)); Newbern, 479 F.3d at 508.
Because the instant charging document—alleging that
Billups did “intentionally restrain[ ] another . . . without
that person’s consent and with knowledge that he had no
lawful authority to do so”—offers little beyond the statu-
tory language, we first focus on that statutory language. See
Newbern, 479 F.3d at 508 (crime-of-violence inquiry ordi-
narily begins and ends with statutory elements and
charging document). The false imprisonment statute,
Wis. Stat. § 940.30, provides, “Whoever intentionally con-
fines or restrains another without the person’s consent and
with knowledge that he or she has no lawful authority to
do so is guilty of a Class H felony.” The statute does not
have as a requisite element the use, attempted use, or
threatened use of physical force. U.S.S.G. § 4B1.2(a)(1). Nor
is it burglary, arson, or extortion, and it does not involve
the use of explosives. U.S.S.G. § 4B1.2(a)(2). Therefore,
the sole question, and the crux of the current appeal, is
whether Wisconsin’s false imprisonment offense “other-
wise involves conduct that presents a serious potential
risk of physical injury to another.” Id.
The district court concluded that the Wisconsin false
imprisonment offense does present such a risk. At sentenc-
ing, Billups pointed out that the offense does not have a
statutory element involving the use or threat of force. In
addition, he directed the court’s attention to the Wis-
consin jury instructions, which indicate that confinement
or restraint may be achieved without the use of physical
force. However, the court rejected this argument, and
explained:
No. 07-2037 5
It seems to me . . . that any time that you have one
person exercising power over another person,
whether it’s by physical force, words, threats, that there
is an inherent risk of serious potential injury. The
person [who is] restrained may not want to be re-
strained and may react by causing injury. The per-
son—if the person does try to leave, get out, get away,
get out from under the restraint of the person that’s
imposing the restraint, that person may resort to
physical means even if he or she hasn’t done so before
that. So it just seems to me to connote a dangerous
situation and dangerous to the victim in particular
when the person restrains the victim somehow in a
car, moving car, in a room, in a place, any time when
the person’s freedom of movement is being re-
stricted for no lawful reason.
Thus, the court concluded that the offense “involves
conduct that presents a serious potential risk of physical
injury to another,” § 4B1.2(a)(2), rendering it a crime
of violence and Billups a career offender pursuant to
§ 4B1.1(a).
Before turning to the merits of Billups’s challenge to this
determination, we must resolve a dispute regarding the
standard of review. Ordinarily, our review of the district
court’s career offender determination, as well as the
underlying crime-of-violence determination, is de novo.
United States v. Kindle, 453 F.3d 438, 440 (7th Cir. 2006).
However, the government argues that we should re-
view only for plain error. At sentencing, Billups made
the same overall argument that he makes here—that his
false imprisonment conviction should not be classified
a crime of violence. However, whereas in the district
court he relied primarily upon the Wisconsin jury instruc-
6 No. 07-2037
tions for the false imprisonment offense and the absence of
a statutory element involving the use of force, here he
introduces the statutory definition of “without consent” as
additional support for his argument. The government
argues that because the statutory definition of “with-
out consent” was not before the district court, Billups
forfeited that aspect of his challenge, limiting our review
to plain error. We disagree. Billups’s challenge below
was sufficient to preserve his current argument, even if
he offers a new twist on that argument based upon addi-
tional authority on appeal. See Bew v. City of Chicago, 252
F.3d 891, 895-96 (7th Cir. 2001) (citing Yee v. City of
Escondido, 503 U.S. 519, 534-35 (1992) (“Once a federal
claim is properly presented, a party can make any argu-
ment in support of that claim; parties are not limited to
the precise arguments they made below.”)). Therefore,
we review de novo both the district court’s career
offender determination and the underlying crime-of-
violence determination. Kindle, 453 F.3d at 440.
Turning to the merits of Billups’s challenge, he con-
tends that the commission of the Wisconsin false impris-
onment offense does not invariably pose a risk of physical
harm to the victim, because the victim’s confinement may
be effected through deception or fraud, rather than force.
In this respect, Billups analogizes the offense to Indiana’s
criminal confinement offense, which we have held is not
necessarily a crime of violence. United States v. Gilbert,
464 F.3d 674, 682 (7th Cir. 2006); United States v. Hagenow,
423 F.3d 638, 644 (7th Cir. 2005). Under Indiana law, a
person commits criminal confinement where he either
“confines another person without the other person’s
consent,” Ind. Code § 35-42-3-3(a)(1), or “removes another
person by fraud, enticement, force, or threat of force, from
No. 07-2037 7
one (1) place to another,” Ind. Code § 35-42-3-3(a)(2). In
Hagenow, we held that, because one could commit the
offense “in a manner that, although unpleasant, does not
present ‘a serious potential risk of physical injury’ to the
other,” the Indiana offense is not, on its face, a crime of
violence. 423 F.3d at 644. We elaborated on this holding
in Gilbert, explaining that because the Indiana criminal
confinement statute “expressly recognizes that the of-
fense can be committed through non-violent means such
as fraud or enticement . . . there is nothing about the
offense as defined that poses an inherent risk of serious
physical injury to another even when the crime is com-
mitted without resort to force.” 464 F.3d at 682. Thus, we
have determined that Indiana’s criminal confinement
offense is not necessarily a crime of violence for pur-
poses of § 4B1.2(a).
Billups points out that Wisconsin’s false imprisonment
offense can also be committed without resort to force;
therefore, he argues, it too should not receive categorical
treatment as a crime of violence. Under Wisconsin law,
false imprisonment must be effected “without the [victim]’s
consent,” but the term “without consent” embraces both
an absence of consent in fact and consent that is obtained
pursuant to deceit or a mistake of fact:
“Without consent” means no consent in fact or that
consent is given for one of the following reasons:
(a) Because the actor put the victim in fear by the use
or threat of imminent use of physical violence on the
victim, or on a person in the victim’s presence, or on
a member of the victim’s immediate family;
(b) Because the actor purports to be acting under
legal authority; or
8 No. 07-2037
(c) Because the victim does not understand the nature
of the thing to which the victim consents, either by
reason of ignorance or mistake of fact or of law other
than criminal law or by reason of youth or defective
mental condition, whether permanent or temporary.
Wis. Stat. § 939.22(48). Because false imprisonment may
involve consent procured through trickery—e.g., pretend-
ing to act under legal authority, § 939.22(48)(b), or other-
wise deceiving the victim so that consent is given pursuant
to a mistake of fact, § 939.22(48)(c)—Billups argues that,
like the Indiana criminal confinement offense, the Wis-
consin offense does not categorically present a serious
potential risk of physical injury to the victim.
The government disagrees, and instead directs our
attention to our earlier decision regarding Illinois’s unlaw-
ful restraint offense in United States v. Wallace, 326 F.3d
881 (7th Cir. 2003). There we held, based on statutory
language identical to that found in the residual clause of
§ 4B1.2(a)—“otherwise involves conduct that presents a
serious potential risk of physical injury to another”—that
Illinois’s unlawful restraint offense constitutes a “violent
felony” for purposes of the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e).1 Wallace, 326 F.3d at 887. The
1
Because the ACCA and the residual clause of § 4B1.2(a) use
identical language—“otherwise involves conduct that pre-
sents a serious potential risk of physical injury to another”—
we have interpreted the two provisions as compelling the same
result. United States v. Rosas, 410 F.3d 332, 335-36 (7th Cir. 2005);
see, e.g., United States v. Upton, 512 F.3d 394, 404 (7th Cir. 2008)
(concluding that the court’s earlier determination that posses-
sion of a sawed-off shotgun was a crime of violence under the
(continued...)
No. 07-2037 9
Illinois Criminal Code defines unlawful restraint as the
knowing detention of another without legal authority,
but does not specify whether violence must be used to
effect the detention. See id. at 886 (quoting 720 Ill. Comp.
Stat. 5/10-3 (2003)). We rejected the defendant’s argu-
ment that, because unlawful restraint might be accom-
plished through nonviolent means, the offense does not
present a serious potential risk of injury to the victim.
We explained that, because the statute focuses on the
potential for physical injury, “the benchmark should be
the possibility of violent confrontation, not whether one
can postulate a nonconfrontational hypothetical scenario.”
Wallace, 326 F.3d at 887 (internal quotation marks and
citation omitted). Even if the victim were detained with-
out the use or threat of violence, we reasoned, an escape
attempt might still result in a violent confrontation be-
tween assailant and victim. Therefore, we concluded
that “a situation where one person restrains another
against his or her will presents a ‘serious potential risk
of physical injury,’ whether it be in the initial restraint or
the possible resulting confrontation between assailant
and victim if the victim attempts to leave.” Id.On Billups’s view, Wallace involved an offense that
always presents a serious potential risk of physical injury
to the victim, whereas Hagenow and Gilbert involved an
offense that might sometimes be committed without
posing such a risk. Thus, the reasoning goes, if there is any
factual scenario in which an offense can be committed
without posing a serious risk of physical harm to the
1
(...continued)
Sentencing Guidelines compelled the same conclusion under
the ACCA), petition for cert. filed, (U.S. Mar. 31, 2008) (No. 07-
10234).
10 No. 07-2037
victim, that offense is not (categorically) a crime of vio-
lence for purposes of §§ 4B1.1(a), 4B1.2(a). We disagree.
The “serious potential risk” language of the residual
clause of § 4B1.2(a) is indicative of probability, rather
than inevitability; therefore, an offense need not pose a
serious risk of harm in every conceivable factual mani-
festation in order to constitute a crime of violence. Cf.
United States v. Vanhook, 510 F.3d 569, 575 (6th Cir. 2007)
(“[A] determination that ‘most instances of an offense
involve a serious potential risk of injury’ is sufficient to
support the conclusion that the crime constitutes a
violent crime under the ‘otherwise clause.’ ” (quoting
United States v. Johnson, 246 F.3d 330, 333 (4th Cir. 2001))),
petition for cert. filed, (U.S. Mar. 13, 2008) (No. 07-9936).
However, this does not resolve the issue of just how
probable “physical injury to another” must be for an
offense to satisfy § 4B1.2(a). For guidance in addressing this
issue, we turn to the Supreme Court’s recent decision in
James v. United States, ___ U.S. ___, 127 S. Ct. 1586, 167
L.Ed.2d 532 (2007).
In James, the Court held that the offense of attempted
burglary, as defined by Florida law, is a “violent fel-
ony”—i.e., an offense that “otherwise involves conduct that
presents a serious potential risk of physical injury to
another”—under the ACCA.2 Most important for present
purposes, the Court expressly rejected the petitioner’s
argument that, in order to be classified as a violent felony,
2
As previously noted, because the relevant language—
“otherwise involves conduct that presents a serious potential
risk of physical injury to another”—in the ACCA and the
residual clause of U.S.S.G. § 4B1.2(a) is identical, we have
treated that language as compelling identical results. See note 1,
supra.
No. 07-2037 11
the attempted burglary offense must always involve a
serious potential risk of injury. The Court explained that
not “every conceivable factual offense covered by a
statute must necessarily present a serious potential risk of
injury before the offense can be deemed a violent felony.”
James, 127 S. Ct. at 1597 (noting that “potential” and “risk”
are “inherently probabilistic concepts,” and their com-
bination “suggests . . . possibilities even more contingent
or remote than a simple ‘risk,’ much less a certainty”).
The Court noted that even a specifically enumerated
violent offense, such as extortion, does not, in every
conceivable case, present a serious potential risk of physi-
cal harm to another. Id. (For example, where “an anony-
mous blackmailer threatens to release embarrassing
personal information about the victim unless he is mailed
regular payments . . . the risk of physical injury to another
approaches zero,” but this “does not mean that the
offense[ ] of . . . extortion [is] categorically nonviolent.”).
Thus, the Court explained, “the proper inquiry is
whether the conduct encompassed by the elements of the
offense, in the ordinary case, presents a serious potential
risk of injury to another.” Id. (emphasis added).
We have little trouble concluding that, in the ordinary
case, Wisconsin’s false imprisonment offense poses just
such a risk. The statute can be violated in essentially
four ways. The first type of violation envisioned by the
statute is one in which the victim does not consent in fact
to his confinement or restraint. Wis. Stat. §§ 940.30,
939.22(48). In such a circumstance, the potential for vio-
lent confrontation is obvious and significant, because a
non-consenting victim is, by definition, one who resists
confinement. See United States v. Zamora, 222 F.3d 756, 764-
65 (10th Cir. 2000) (concluding that New Mexico false
12 No. 07-2037
imprisonment offense, which involves confinement or
restraint of non-consenting victim, is crime of violence
under U.S.S.G. §§ 4B1.1, 4B1.2(a)), cert. denied, 531 U.S. 1043(2000). The second type of violation involves a victim
who consents only because the perpetrator “put the
victim in fear by the use or threat of imminent use of
physical violence on the victim, or on a person in the
victim’s presence, or on a member of the victim’s im-
mediate family.” Wis. Stat. § 939.22(48)(a). Again, the
potential for violent confrontation is clear where the
perpetrator threatens force against the victim or his family.
Indeed, if the scope of the offense were limited to these
two factual scenarios, Billups’s argument would merit
little discussion. However, the offense also embraces
consent obtained by means other than the threat of force,
and this requires further analysis.
The third type of violation involves a perpetrator
who obtains the victim’s consent by purporting to act
under legal authority. Wis. Stat. § 939.22(48)(b). The
potential for violence diminishes somewhat where the
victim consents not based on a threat of force, but because
he erroneously believes that the perpetrator possesses
lawful authority. Nevertheless, the risk remains substan-
tial, because the victim may discover that the perpetrator
lacks legal authority and then resist. Cf. United States v.
Kaplansky, 42 F.3d 320, 324 (6th Cir. 1994) (finding that Ohio
attempted kidnapping offense, even where accomplished
by deception, presents inherent risk of violence due to “the
ever-present possibility that the victim may figure out
what’s really going on and decide to resist”).
Finally, the victim may consent because he “does not
understand the nature of the thing to which [he] consents,
either by reason of ignorance or mistake of fact or of law
No. 07-2037 13
other than criminal law or by reason of youth or defective
mental condition, whether permanent or temporary.”
Wis. Stat. § 939.22(48)(c). This provision appears to en-
compass two distinct scenarios. In the first, the victim
consents to his confinement based on some mistaken
belief, perhaps resulting from deception by the perpetrator.
Again, the potential for violent confrontation remains
substantial, despite the victim’s initial consent, because the
victim may discover the ruse (or his own mistake) and
resist. See Dickson v. Ashcroft, 346 F.3d 44, 49-51 (2d Cir.
2003) (concluding that New York offense of unlawful
imprisonment of competent adult, even where accom-
plished by deception, involves substantial risk of vio-
lence); Kaplansky, 42 F.3d at 324 (concluding that Ohio
attempted kidnapping offense, even where accom-
plished by deception, involves substantial risk of violence
because victim may discover the ruse and resist); cf. United
States v. Riley, 183 F.3d 1155, 1159 (9th Cir. 1999) (rejecting
argument that, because Louisiana “simple rape” offense
could be accomplished by trickery or deception, it is not
a crime of violence).
Alternatively, in the second scenario, the victim may be
unable to give meaningful consent because, for instance,
the victim is a child. See, e.g., State v. Teynor, 414 N.W.2d 76,
82 (Wis. App. 1987). A child may be less able and less
inclined to physically resist, reducing the risk of violent
confrontation. However, the child who shies away from
confrontation might nonetheless attempt to escape con-
finement, potentially resulting in physical injury. See
United States v. Riva, 440 F.3d 722, 724-25 (5th Cir. 2006)
(finding that unlawful confinement of a child under the
age of 17 by means of deception creates serious potential
risk of physical injury because, for instance, the child
14 No. 07-2037
might attempt escape). We need not decide whether the
child-confinement scenario necessarily entails a “serious
potential risk of physical injury to another.” Even assuming
that it does not, our conclusion remains unaltered; that
there exists a single possible way, among many, to com-
mit the offense without posing a serious risk of injury
to another does not mean that, in the ordinary case, the
offense does not present such a risk. See James, 127 S. Ct. at
1597; Wallace, 326 F.3d at 886-87.
Our conclusion is consistent with Hagenow and Gilbert.
Significantly, the Indiana criminal confinement statute
at issue there was neatly divisible, presenting two dis-
tinct routes to conviction: (1) confinement of another
without his consent, Ind. Code § 35-42-3-3(a)(1); or
(2) removal of another person by fraud, enticement, or
the use or threat of force from one place to another,
Ind. Code § 35-42-3-3(a)(2). As Gilbert recognized, a con-
viction under the first section of the statute, which
involves confinement of the victim without his consent,
might present an inherent risk of resistance, and thus
violence. Gilbert, 464 F.3d at 680-81 (noting that, with
respect to the first section of the Indiana statute, “Wallace’s
reasoning . . . could lead one to conclude that because the
restraint is involuntary, the victim might resist, and that
possibility in turn presents a risk of injury”). However,
the second section of the statute, involving removal rather
than confinement or restraint, does not necessarily pose
the same risk; “[t]ricking someone into moving volun-
tarily from one place to another does not present the
same danger of violent confrontation that involuntarily
restraining him or her might.” Id. at 681. In Gilbert, because
the defendant had been charged and convicted under
the second section of the statute, we could not conclude
that he had been convicted of a crime of violence. Id.No. 07-2037 15
Wisconsin’s false imprisonment offense differs from the
Indiana criminal confinement offense in two critical
respects. First, even in its most innocuous factual incarna-
tion, the Wisconsin offense is inherently more coercive,
because it must involve confinement or restraint and
cannot be accomplished simply by “[t]ricking someone
into moving voluntarily from one place to another.” Gilbert,
464 F.3d at 681 (emphasis added). Indeed, in this respect,
the Wisconsin offense is akin to the Illinois unlawful
restraint offense that we deemed a crime of violence in
Wallace. 326 F.3d at 886 (unlawful restraint occurs when
the perpetrator “knowingly without legal authority
detains another” (quoting 720 Ill. Comp. Stat. 5/10-3
(2003) (emphasis added))). Second, the Wisconsin
statute is not neatly divisible into two components; rather,
the “without consent” element, which is defined in a
separate statute, embodies several alternative scenarios,
only one of which might not reflect a serious risk of injury
to the victim. Thus, while it is difficult to conclude that the
Indiana offense, in the ordinary case, presents a serious
potential risk of injury to the victim, just the opposite is
true of Wisconsin’s false imprisonment offense; the low-
risk scenario appears to be the outlier. Accordingly,
we reject Billups’s contention that the Wisconsin offense
is analogous to the Indiana criminal confinement offense
at issue in Hagenow and Gilbert.
Our crime-of-violence determination is also consistent
with the Supreme Court’s recent decision in Begay v. United
States, ___ U.S. ___, 128 S. Ct. 1581, 170 L.Ed.2d 490 (2008),
which held that New Mexico’s felony offense of driving
under the influence of alcohol (DUI), a strict liability
crime, is not a violent felony within the meaning of the
ACCA. The Court accepted the lower court’s conclusion
16 No. 07-2037
that a DUI offense “presents a serious risk of physical
injury to another.” Begay, 128 S. Ct. at 1584. However, the
Court found that the DUI offense lacked the sort of
“purposeful, violent, and aggressive” conduct exemplified
by those enumerated crimes—burglary, arson, and
extortion—immediately preceding the “otherwise in-
volves” residual clause. Id. at 1586-88; 18 U.S.C.
§ 924(e)(2)(B)(ii). Therefore, the Court concluded, the
New Mexico DUI offense was not a violent felony under
the ACCA.
Although the Begay holding is limited to the ACCA’s
definition of violent felony, the Court’s reasoning sup-
ports our conclusion here with respect to the residual
clause of U.S.S.G. § 4B1.2(a). Unlike a DUI offense,
which may be committed without criminal intent, false
imprisonment always involves purposeful behavior and
typically involves aggressive, violent behavior. In this
respect, it is similar to those enumerated crimes—burglary
of a dwelling, arson, and extortion—immediately pre-
ceding the “otherwise involves” residual clause of
§ 4B1.2(a). Moreover, the commentary to § 4B1.2 indicates
that the term “crime of violence” also includes kidnapping,
an offense involving conduct remarkably similar to that
involved in false imprisonment. U.S.S.G. § 4B1.2 cmt. n.1
(2006). Compare Wis. Stat. § 940.30 (Wisconsin false impris-
onment statute), with Wis. Stat. § 940.31 (Wisconsin kidnap-
ping statute). Thus, our crime-of-violence determination
is buttressed by the Court’s decision in Begay.
Finally, we note that even if the Wisconsin false impris-
onment offense did not categorically constitute a crime of
violence, an alternative ground would still support our
decision. At sentencing, Billups effectively conceded that
his false imprisonment conviction involved violence,
No. 07-2037 17
including actual injury to another, when his counsel
represented that “Mr. Billups was found guilty of a [mis-
demeanor] battery charge at the same time he was found
guilty of the false imprisonment arising out of all of the
same acts” (emphasis added). See Wis. Stat. § 940.19 (mis-
demeanor battery involves “caus[ing] bodily harm to
another”). Under Shepard v. United States, 544 U.S. 13 (2005),
our prior-conviction crime-of-violence enquiry is “limited
to 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 to some comparable judicial
record of this information.” Kindle, 453 F.3d at 442 (quoting
Shepard, 544 U.S. at 26 (emphasis added in Kindle)). We
have explained that, although “[c]ourts are not permit-
ted to make assumptions nor conduct proceedings or
investigations” to ascertain the conduct involved in a
previous conviction, “if a defendant offers an admission
in court papers or colloquy . . . the proper enquiry into the
previous conviction no longer matters because the answer
is in the form of an admission in the record.” Kindle,
453 F.3d at 442. Thus, in Kindle, the district court was
permitted to rely upon the defendant’s plea agreement
and his representations to the court at sentencing in
concluding that his second-degree burglary conviction
constituted a “crime of violence” under U.S.S.G. § 4B1.2. Id.
Here, where Billups’s counsel represented at sentencing
that the battery and false imprisonment convictions arose
out of “all of the same acts,” it is difficult to imagine
how the former, but not the latter, offense involved vio-
lence and bodily injury to another. The district court
was not required to ignore this admission. Cf. Kindle,
453 F.3d at 441 (“[The defendant’s] argument that an
admission in court papers or in plea agreements should
18 No. 07-2037
be ignored is, as we said at oral argument, striking.”).
Therefore, Billups’s admission at sentencing provides
an alternative basis for our decision.3
III. Conclusion
To recap, we conclude that, in the ordinary case, the
Wisconsin false imprisonment offense, Wis. Stat. § 940.30,
involves purposeful, aggressive conduct that presents “a
serious potential risk of physical injury to another.”
U.S.S.G. § 4B1.2(a). Therefore, the offense is a crime of
violence, and the district court properly designated
Billups as a career offender under U.S.S.G. § 4B1.1(a) in
determining the advisory guidelines imprisonment range.
Accordingly, Billups’s sentence is AFFIRMED.
3
Billups raises one additional argument regarding a prior
Wisconsin misdemeanor battery conviction for which he
was subject to prosecution under Wisconsin’s habitual crim-
inality statute, fearing that the government might contend
the potential penalty enhancement would make this misde-
meanor offense eligible for a crime-of-violence designation. But
the government does not present such a contention, not even
in the alternative, so we do not need to address it.
USCA-02-C-0072—7-29-08