                             UNPUBLISHED ORDER
                          Not to be cited per Circuit Rule 53



            United States Court of Appeals
                               For the Seventh Circuit
                               Chicago, Illinois 60604

                               Submitted July 30, 2004
                                Decided June 7, 2005

                                        Before

                           Hon. WILLIAM J. BAUER, Circuit Judge

                           Hon. MICHAEL S. KANNE, Circuit Judge

                           Hon. DIANE P. WOOD, Circuit Judge

No. 03-2425

UNITED STATES OF AMERICA,                        Appeal from the United States District
              Plaintiff-Appellee,                Court for the Northern District
                                                 of Illinois, Eastern Division.
      v.
                                                 No. 02 CR 432
JOSE VALLEJO,
           Defendant-Appellant.                  David H. Coar,
                                                 Judge.

                                      ORDER

    Defendant-Appellant Jose Vallejo petitions for a rehearing of our decision to affirm
his sentence. We deny the petition, but find that the district judge’s one-point
sentencing enhancement for possession of a firearm in connection with a crime of
violence pursuant to the United States Sentencing Guidelines was in violation of
United States v. Booker, 125 S.Ct. 738 (2005). Furthermore, while the district judge’s
application of 18 U.S.C. § 922(e)(1), the Armed Career Criminal Act (“ACCA”), did not
violate Vallejo’s Sixth Amendment rights, the district judge’s compulsory application
of the Guidelines constituted error under Booker. Therefore, we vacate Vallejo’s
sentence and remand for resentencing.

   A jury convicted Vallejo of two counts of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Because Vallejo had five prior convictions for armed
robbery, the district judge sentenced him as an armed career criminal pursuant to the
ACCA and the applicable Guidelines provisions. In calculating Vallejo’s sentence, the
district judge added three criminal history points for each prior conviction pursuant
No. 03-2425                                                                      Page 2

to U.S.S.G. §§ 4A1.1(a) and 4A1.2(a)(2). Furthermore, the district judge found that
Vallejo qualified for an additional one-point enhancement under U.S.S.G.
§ 4B1.4(b)(3)(A) for possessing the firearm in connection with crimes of violence–in this
case, assault. The ACCA required a sentence of “not less than fifteen years.” 18 U.S.C.
§ 924(e)(1). The district judge sentenced Vallejo to 262 months’ imprisonment, which
was at the very bottom of the range then mandated by the Guidelines.

   Vallejo argues that the enhancements that the district judge imposed upon his
sentence were based upon findings of fact not made by the jury and therefore were in
violation of Booker. Vallejo preserved these arguments when he advanced his
Apprendi-based objections before the district court. The issue is whether the sentence
that the district judge imposed was erroneous in light of Booker and, if so, whether the
error was harmless. See United States v. Schlifer, 403 F.3d 849, 853-54 (7th Cir.
2005). In Booker, the Supreme Court reaffirmed its ruling in Apprendi that “[a]ny fact
(other than a prior conviction) which is necessary to support a sentence exceeding the
maximum authorized by the facts established by a plea of guilty or a jury verdict must
be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker,
125 S.Ct. at 756. The Court also severed the mandatory language of the Guidelines,
rendering them advisory. See id. at 764.

    We agree with Vallejo that his one-point enhancement for possession of a firearm
in connection with a crime of violence violated his Sixth Amendment rights because
the jury had not found that an assault had occurred and Vallejo had never admitted
to committing an assault. Booker, 125 S.Ct. at 756. Rather, the district judge made
that finding by a preponderance of the evidence, which is no longer legitimate after the
Blakely and Booker rulings. As a result, Vallejo was sentenced pursuant to an
increased Guidelines range. In light of the comments made by the district judge
suggesting that the Guidelines mandated an excessive sentence and the fact that
Vallejo was given the absolute minimum sentence in the mandated range, the error of
imposing the one-point enhancement was not harmless.

    Vallejo also challenges the district judge’s application of the ACCA. Vallejo argued
at sentencing that his five prior convictions for armed robbery were related for
purposes of the ACCA because the prior sentencing court had treated those crimes as
consolidated and because those crimes were part of a common scheme or plan. Prior
sentences imposed in related cases are treated as one sentence, not several, for
purposes of generating the defendant’s criminal history category under the Guidelines.
This criminal history calculation helped drive the sentencing range that the district
judge was bound to follow. The district judge, however, was unpersuaded by Vallejo’s
argument; he found that the prior crimes were unrelated and sentenced Vallejo
accordingly. Vallejo argues here that this factual finding by the district judge violated
his Sixth Amendment rights as they were interpreted by the Supreme Court in Booker
and Shepard v. United States, 125 S.Ct. 1254 (2005). In Shepard, the Supreme Court
held that a sentencing judge’s inquiry under the ACCA to determine whether a plea
No. 03-2425                                                                       Page 3

of guilty to burglary defined by a non-generic statute admits elements of a generic
offense “is limited to the terms of the charging document, the terms of the plea
agreement or transcripts of colloquy between judge and defendant in which the factual
basis for the plea is confirmed by the defendant, or to some comparable judicial record
for this information.” Shepard, 125 S.Ct. at 1263; see also United States v. Ngo,
No. 04-3398, 2005 WL 1023034, at *3 (7th Cir. May 3, 2005). In other words, a judge’s
findings concerning a defendant’s criminal history must be “traceable to a prior judicial
record of ‘conclusive significance’.” Ngo, 2005 WL 1023034, at *3 (quoting Shepard,
125 S.Ct. at 1262). A sentencing judge making such findings of fact cannot rely upon
police reports or complaint applications. See Shepard, 125 S.Ct. at 1260-61; see also
Ngo, 2005 WL 1023034, at *3.

   We recently addressed the effect of Shepard in United States v. Ngo. In Ngo, we
clarified that Booker did not disturb the principle that judges can find facts concerning
a defendant’s recidivism without running afoul of Apprendi. Ngo, 2005 WL 1023034,
at *2. While Shepard narrowed the scope of this inquiry, it did not prohibit a
sentencing judge from determining whether prior crimes were consolidated. Id. at *3.
This is because a finding of consolidation, as a rule, “can be made by resorting only to
information with the ‘conclusive significance’ of a prior judicial record.” Id. A
sentencing judge’s finding of fact that prior crimes were consolidated can be based only
upon a formal order of consolidation or a reference in a sentencing transcript that the
prior judge had considered the cases consolidated. Id. (citing United States v. Best,
250 F.3d 1084, 1095 (7th Cir. 2001)). Since there had been no such formal order and
the sentencing transcript made no indication that the prior judge had understood the
cases to have been functionally consolidated, the district judge was compelled to rule
that the cases were not consolidated. Therefore, the district judge made the type of
factual finding that Booker and Shepard permit.

    Ngo also suggested that a sentencing judge may make findings of fact as to whether
prior crimes arose from a common scheme or plan so long as those findings are based
upon sources authorized by Shepard. See id. Crimes are part of a common scheme
“when they are jointly planned or when one crime necessarily entails the commission
of the other.” Id. at *4. In Ngo, the sentencing judge erred by relying upon police
reports and complaint applications–sources prohibited by Shepard–to determine
whether the prior crimes were born of a common scheme. Id. The situation here is
different. The district judge in this case based his findings explicitly on a passage from
one of Vallejo’s prior written plea agreements which read, “[I]n the middle of
November, [Vallejo] and his two friends . . . decided to stick people up for money.”
Sentencing Transcript at 14. Since Shepard considers plea agreements to be judicial
records of conclusive significance, the district court’s reliance upon a plea agreement
to find that Vallejo’s five prior armed robberies were not conceived as a common
scheme raises no Sixth Amendment concerns.
No. 03-2425                                                                     Page 4

   Nevertheless, this court has ruled that the mandatory application of the Guidelines
constitutes error regardless of whether the defendant’s Sixth Amendment rights were
violated. United States v. Castillo, Nos. 02-3584 & 02-4344, 2005 WL 1023029, at *10
(7th Cir. May 3, 2005); United States v. White, No. 03-2875, 2005 WL 1023032, at *7
(7th Cir. May 3, 2005); Schlifer, 403 F.3d at 853. Because Vallejo preserved his
Apprendi-based objection before the district court, his sentence must be vacated unless
the government can show that the error was harmless. Schlifer, 403 F.3d at 854. As
we mentioned, the district judge expressed concern about imposing a sentence within
the range mandated by the then-compulsory Guidelines, and the 262-month sentence
that he ultimately imposed was at the very bottom of the range mandated by the
Guidelines (but still well above the 180-month minimum sentence mandated by the
ACCA). The government has failed to offset this evidence that the error was not
harmless with proof that the district court would have given the same sentence had the
Guidelines been merely advisory. Therefore, Vallejo’s sentence is vacated, and we
remand for resentencing.

   Vallejo also repeats the argument he made on appeal that the ACCA and U.S.S.G.
§ 4B1.4(b)(3) violate the Commerce Clause. We saw no merit in this argument before;
while Congress must have a commerce nexus to pass criminal statutes, it may
prescribe a sentence for violation of that statute without once again demonstrating a
commerce nexus. United States v. Vallejo, 373 F.3d 855, 861 (7th Cir. 2004). Because
the Supreme Court’s rulings in Blakely and Booker do not alter our analysis, we
decline the offer to reconsider the issue.

  Therefore, we DENY the petition for rehearing, but VACATE Vallejo’s sentence and
REMAND for resentencing consistent with Booker and this Order.
