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.