                           In the
 United States Court of Appeals
               For the Seventh Circuit
                        ____________

No. 04-2929
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.
FREDDY ROSAS,
                                        Defendant-Appellant.

                        ____________
          Appeal from the United States District Court
               for the Eastern District of Wisconsin.
        No. 03-CR-239—Rudolph T. Randa, Chief Judge.
                        ____________
  ARGUED DECEMBER 15, 2004—DECIDED MARCH 24, 2005
             AS AMENDED MAY 19, 2005
                   ____________




  Before BAUER, COFFEY, and SYKES, Circuit Judges.
  PER CURIAM. Freddy Rosas was convicted of drug and
gun crimes and sentenced as a career offender under
U.S.S.G. § 4B1.1 to a total of 262 months imprisonment,
based in part on his prior Wisconsin conviction for fleeing
a police officer. In this appeal Rosas argues that he is not a
career offender because, he says, his conviction for fleeing a
police officer is not a qualifying “crime of violence.” Like the
district court, however, we conclude that United States v.
Howze, 343 F.3d 919, 921 (7th Cir. 2003), compels the con-
clusion that under the Wisconsin statute at issue, fleeing a
2                                                No. 04-2929

police officer is categorically a crime of violence. However,
because the judge sentenced Rosas under a mandatory
sentencing guidelines system that, after United States v.
Booker, 125 S. Ct. 738 (2005), is now advisory, we order a
limited remand in accordance with United States v.
Paladino, 401 F.3d 471 (7th Cir. 2005) to determine if the
judge would have imposed the same sentence had he known
that the Guidelines were merely advisory.


                             I.
   Rosas pleaded guilty to distributing cocaine, 21 U.S.C.
§ 841(a)(1), possessing a firearm during and in relation to
a drug offense, 18 U.S.C. § 924(c), and possession of a fire-
arm by a felon, id. § 922(g)(1). Rosas had several prior
Wisconsin convictions, including a felony conviction for a
drug offense and another under Wis. Stat. § 346.04(3) for
fleeing a police officer. The probation officer recommended
that Rosas be sentenced under U.S.S.G. § 4B1.1 as a career
offender, a guideline applicable if the defendant has at least
two prior felony convictions for either a crime of violence or
a controlled substance offense. The probation officer
concluded that Rosas’ flight conviction under § 346.04(3),
which qualified as a crime of violence, along with his state
drug conviction provided the two convictions necessary for
sentencing him as a career offender. Rosas’ base offense
level otherwise would have been 24, and with a three-level
downward adjustment for acceptance of responsibility under
U.S.S.G. § 3E1.1 and a Category VI criminal history score,
he might have faced an imprisonment range of 77 to 96
months. The proposed career offender guideline, however,
increased his base offense level to 37, and with the decrease
for acceptance of responsibility, Rosas’ total offense level
was 34, yielding a recommended imprisonment range of 262
to 327 months. The district court imposed concurrent
sentences for 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 922(g)(1),
No. 04-2929                                                 3

240 and 120 months respectively, and a 60-month consecu-
tive sentence for 18 U.S.C. § 924(c) for a “total term of
262 months imprisonment.” Additionally, the court ordered
Rosas to serve five years of supervised release and pay a
300 dollar assessment and a 2,000 dollar fine.
   At sentencing Rosas objected to the characterization of his
fleeing conviction as a crime of violence. He offered three
reasons. First, he argued that Howze, which holds in the
context of 18 U.S.C. § 924(e) that all flights to avoid arrest
pose a serious potential risk of physical injury and thus are
categorically “violent felonies,” did not control because
Howze analyzes § 924(e) and the related armed career
criminal guideline, U.S.S.G. § 4B1.4, rather than the career
offender guideline, id. § 4B1.1. Second, Rosas argued that,
even if applicable, Howze should be reconsidered because a
recent addition to the Wisconsin statute creating an
additional misdemeanor provision for flight from the police
renders the decision overbroad. And, third, he argued that
certain conduct prohibited by § 346.04(3) does not include
an element of risk to qualify it as a “crime of violence.” The
district court concluded that it was bound by Howze and
held that Rosas’ fleeing conviction did qualify as a “crime of
violence” because, despite the different sentencing provisions
at stake, the conduct described in Howze and in Rosas’ case
is the same. Regarding Rosas’ argument about the amend-
ment to § 346.04 after Howze was decided, the district court
reasoned that the change was irrelevant since, as Rosas
concedes, even after the amendment his conduct would
amount to a felony, not a misdemeanor. Finally, the court
looked to the conduct underlying Rosas’ conviction and
concluded that, indeed, his flight from police had created a
potential risk of physical injury. On appeal Rosas reasserts
the three arguments he made in district court, and adds a
fourth contesting the district court’s reliance on information
from outside his charging instrument in concluding that the
conduct underlying his fleeing conviction presented a seri-
4                                                No. 04-2929

ous potential risk of physical injury. Rosas also contends
that his sentence runs afoul of Blakely v. Washington, 124
S. Ct. 2531 (2004), and this court’s decision in United States
v. Booker, 375 F.3d 508 (7th Cir. 2004).


                            II.
  Under § 4B1.1, a defendant is a career offender if he is
being sentenced for a crime of violence or drug trafficking
offense committed after he turned 18 and he has at least
two prior felony convictions for either crimes of violence or
controlled substance offenses. U.S.S.G. § 4B1.1(a). A “crime
of violence” is a state or federal felony that is either enu-
merated in the guideline definition, or “has as an element
the use, attempted use, or threatened use of physical force
against the person of another,” or “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” U.S.S.G. § 4B1.2(a). Fleeing a police
officer is not one of the felonies enumerated in the guideline
definition, and Wisconsin’s statute does not include any
element of force, so flight from police can be a crime of
violence only if it fits within the “otherwise” clause of
§ 4B1.2. A district court’s decision to sentence a defendant
as a career offender is a question of law reviewed de novo.
United States v. Cole, 298 F.3d 659, 661 (7th Cir. 2002).
  In arguing that Howze should not control, Rosas correctly
observes that the decision actually decided that flight under
§ 346.04(3)—the very statute at issue in this case—is a
“violent felony” under the Armed Career Criminal Act, 18
U.S.C. § 924(e), which the Guidelines implement in § 4B1.4,
not § 4B1.1. This distinction is significant, says Rosas,
because Application Note 1 to § 4B1.4 states that the
definitions of “violent felony” and “crime of violence” are
“not identical.” True enough, but the relevant language in
the definition of “violent felony” at issue in Howze—“or
otherwise involves conduct that presents a serious potential
No. 04-2929                                                  5

risk of physical injury to another”—is identical to the
“otherwise” clause of the definition of “crime of violence”
found in § 4B1.2. Compare 18 U.S.C. § 924(e)(2)(B)(ii),
U.S.S.G. § 4B1.4, comment. (n.1), with U.S.S.G. § 4B1.2(a).
Rosas concedes this point, but simply insists, without elab-
oration, that there is a material distinction between Howze
and his case because different provisions of the Guidelines
are at stake.
  In fact there is no distinction. In Howze itself, we ex-
plained that United States v. Shannon, 110 F.3d 382 (7th
Cir. 1997) (en banc), viewed the career offender guideline
and the Armed Career Criminal Act as “interchangeable.”
See Howze, 343 F.3d at 924. And at least as to the “other-
wise” clause in both the definition of “violent felony” and
the career offender definition of “crime of violence,” Rosas
makes no argument as to why cases interpreting the same
language in one provision should not apply equally to the
other. We note that, at the time Howze was decided, the
clause at stake in both the Armed Career Criminal Act and
in the career offender definition (“or otherwise involves
conduct that presents a serious potential risk of physical
injury to another”) was identical to what is in use today.
Moreover, although the precise question has not been before
this court, the Sixth Circuit—relying on Howze—has
concluded that flight does qualify as a “crime of violence”
under § 4B1.2. See United States v. Martin, 378 F.3d 578,
582-83 (6th Cir. 2004) (characterizing § 924(e) analysis in
Howze as “a comparable conclusion”).
  Rosas also argues that Howze’s holding should not control
because, he contends, a recent amendment that expanded
Wis. Stat. § 346.04 to allow charging flight from the police
either as a misdemeanor or felony renders Howze overbroad
and undermines the decision. The statute now includes a
new subsection (2t) that reads: “No operator, after having
received a visible or audible signal to stop his or her vehicle
from a traffic officer or marked police vehicle, shall know-
6                                                No. 04-2929

ingly resist the traffic officer by failing to stop his or her
vehicle as promptly as safety reasonably permits.” Wis.
Stat. § 346.04(2t). Rosas takes the position that the Wiscon-
sin legislature, by creating a misdemeanor provision, has
recognized that “all flights do not create felonious risk-
creating conduct.” Appellant’s Br. at 28. The short answer
is that a misdemeanor cannot be a crime of violence and
that Howze analyzes § 346.04(3), not § 346.04(2t). In any
event, the new section does not appear to alter the approach
to conduct previously proscribed by § 346.04(3), but rather
criminalizes a new class of conduct. Compare Wis. Stat.
§ 346.04(3), with id. § 346.04(2t). Moreover, Rosas’ argument
regarding the implications of misdemeanor flight is purely
hypothetical, as Rosas concedes that his conduct would still
be charged and resolved as a felony even after the amend-
ment to § 346.04. As applied to Rosas and § 346.04(3),
Howze is not undermined at all.
  Because Howze compels the conclusion that a violation of
§ 346.04(3) is categorically a crime of violence, Rosas’ next
two arguments have no relevance. Rosas insists that his
particular violation of § 346.04(3), as charged in the
Information, did not pose a potential risk of physical injury
to another. Under a categorical approach, though, there is
no need to evaluate the language of the charging instru-
ment: Howze rejected the argument that there is a way to
violate § 346.04(3) that does not involve the creation of risk
and concluded, as a per se rule with respect to that pro-
vision, “all flights involve that risk-creating conduct.”
Howze, 343 F.3d at 922. For the same reason it does not
matter that the district court appears to have erroneously
evaluated Rosas’ flight conviction by looking to the underly-
ing conduct. See, e.g., United States v. Cole, 298 F.3d 659,
662 (7th Cir. 2002) (confining a district court’s evaluation
to charging documents, except in certain circumstances).
 That leaves only the Blakely/Booker issues surrounding
Rosas’ sentence. As we have explained thus far, the district
No. 04-2929                                                      7

court correctly categorized Rosas’ prior conviction as a crime
of violence under the Sentencing Guidelines. However, our
analysis does not end there. While his appeal was pending
before this court Rosas raised a valid, albeit untimely,
Booker/Blakely claim challenging the propriety of his
sentence.1 Thus, our review is for plain error only. See
United States v. White, No. 03-2875, slip op. at 12 (7th Cir.
May 3, 2005); Paladino, 401 F.3d at 481. In determining
whether we may correct an error that was not raised during
trial, “there must be (1) ‘error,’ (2) that is ‘plain,’ and (3)
that ‘affect[s] substantial rights.’ If all three conditions are
met an appellate court may then exercise its discretion to
notice a forfeited error, but only if (4) the error ‘seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’ ” United States v. Cotton, 535 U.S. 625,
631 (2002) (quoting Johnson v. United States, 520 U.S. 461,
466-67 (1997)) (internal citations omitted).
  As this court recently articulated in a number of decisions,
plain error will be found to exist even in the absence of a
constitutional violation by virtue of the “mere mandatory
application of the Guidelines [and] the district court’s belief
that it was required to impose a Guidelines sentence.”
White, slip op. at 13; United States v. Castillo, Nos. 02-3584
& 02-4344, slip op. at 32 (7th Cir. May 3, 2005);
United States v. Schlifer, 403 F.3d 849, 853 (7th Cir. 2005).
Thus, even though Rosas’ Sixth Amendment rights were not
violated by the district court’s use of prior convictions to en-


1
   Rosas’ claim was raised for the first time in a petition for re-
hearing before this court. A similar circumstance was addressed
in United States v. Macedo, Nos. 02-3563, 02-3564 & 02-3842,
slip op. at 2 (7th Cir. Apr. 14, 2005), and we held that raising a
claim in a petition for rehearing is the functional equivalent of
raising a claim at any other time that an appeal is pending before
an appellate court, i.e., the claim is considered forfeited and
review is exclusively for plain error. See id. at 16.
8                                                    No. 04-2929

hance his sentence, see Almendarez-Torres v. United States,
523 U.S. 224, 244 (1998),2 a plain error has occurred due to
the district court’s belief at sentencing that the Guidelines
were mandatory and binding; a belief which we now know
to be mistaken. See Booker, 125 S. Ct. at 756.
   Thus, we must only determine whether Rosas’ “substan-
tial rights” have been affected and, if so, whether we may
exercise our discretion to remedy the situation. This is a
case where, having reviewed the record, we do not know
with certainty what the district court would have done had
it known that the Sentencing Guidelines were merely advis-
ory. Indeed, during the sentencing hearing the trial judge
highlighted the gravity of the offense that he had commit-
ted, yet sentenced Rosas at the low end of the Guidelines
range, highlighting the fact that the court was “bound by
the Sentencing Guidelines.” Thus, we consider it appropri-
ate, while retaining jurisdiction over the matter, to order a
limited remand consistent with our decision in Paladino,
401 F.3d at 483-84, so that we might determine whether—in
light of the now-advisory nature of the Guidelines—the
district court would have imposed a different sentence.


                              III.
  While retaining jurisdiction, we REMAND this matter to
the district court for proceedings consistent with Paladino,
401 F.3d at 483-84.


2
  Although the Supreme Court recently narrowed the scope of the
Almendarez-Torres exception for prior convictions in Shepard v.
United States, 125 S. Ct. 1254 (2005), that decision has no bearing
on Rosas’ case due to the fact that the categorization of his prior
conviction as a “crime of violence” rests exclusively on an exami-
nation of the statute of conviction, a judicial inquiry not pro-
scribed by Shepard. See United States v. Ngo, No. 04-2662, slip op.
at 5 (7th Cir. May 3, 2005).
No. 04-2929                                          9

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-19-05
