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

No. 05-2790
UNITED STATES OF AMERICA,
                                                 Plaintiff-Appellee,
                                 v.

JOSEPH VAN SACH,
                                            Defendant-Appellant.
                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 04 CR 466—Ruben Castillo, Judge.
                          ____________
   ARGUED JANUARY 20, 2006—DECIDED AUGUST 17, 2006
                    ____________


  Before FLAUM, Chief Judge, and BAUER and RIPPLE,
Circuit Judges.
  BAUER, Circuit Judge. After a jury trial, Joseph Van Sach
was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). District Judge Ruben
Castillo determined that the Armed Career Criminal Act
applied, 18 U.S.C. § 924(e), and therefore, Van Sach’s
advisory Sentencing Guideline range was 210 to 262
months. Judge Castillo sentenced Van Sach at the bottom
of this advisory range, to 210 months in prison. On appeal,
Van Sach contends that he was denied due process and a
fair trial when the district judge ordered him to wear leg
shackles at a jury trial where Van Sach represented
himself. In addition, Van Sach argues that he was denied
2                                                No. 05-2790

the right to confrontation because the government declined
to call a paid confidential informant as a witness, yet relied
on her acts and statements to convict him. Next, Van Sach
challenges the jury instructions. Van Sach also argues that
18 U.S.C. § 922(g) is unconstitutional as applied under the
Commerce Clause. Finally, Van Sach challenges the
application of the Armed Career Criminal Act and the
reasonableness of his 210 month sentence. We affirm.


                      I. Background
A. Investigation
  The Bureau of Alcohol, Tobacco, Firearms, and Explosives
(“ATF”) began investigating Joseph Van Sach in 2003. The
investigation focused on illegal trafficking of firearms and
involved surveillance, the use of a confidential informant,
and the controlled purchase of a firearm from Van Sach.
  ATF Special Agent Susan Bray testified that the first
meeting between the confidential informant (“CI”) and Van
Sach was on July 14, 2003. Immediately prior to the
meeting, Agent Bray searched the CI for contraband, found
none, and equipped the CI with a digital recorder. The
CI then met with Van Sach for approximately an hour
and 45 minutes. Agent Bray and her fellow law enforcement
officers conducted continuous surveillance of this meeting.
  Agent Bray testified at trial that she retrieved the digital
recorder from the CI immediately after the CI met with Van
Sach on July 14, 2003, and listened to it. Having heard Van
Sach’s voice before, Agent Bray was able to identify both
Van Sach’s and the CI’s voices on the tape. She followed
this procedure with all the recorded conversations between
Van Sach and the CI.
  The CI had more in-person meetings with Van Sach on
July 16 and July 17, 2003. On July 21, Van Sach and the CI
had more serious conversations and they planned to meet
No. 05-2790                                               3

at Van Sach’s apartment that day. The telephone conversa-
tions were recorded and Agent Bray met with the CI on the
south side of Chicago around 2:30 p.m. Shortly after they
met, the CI placed a telephone call to Van Sach to discuss
the sale of a firearm. In this call, Van Sach could be heard
telling the CI he wanted “450 for it.” Van Sach also de-
scribed the firearm he was selling as having “ten rounds”
and he explained that it was “Teflon.”
  The CI placed a second phone call to Van Sach at approxi-
mately 3:30 p.m. In this recorded conversation, Van Sach
again informed the CI that he had numerous firearms he
was in a position to sell and that he would need the CI to
bring cash that night in order to complete the gun transac-
tion. Agent Bray met with the rest of her team to plan the
operation for the CI to purchase a Talon Industries, Inc.,
Model T200, 9 millimeter semi-automatic pistol from Van
Sach that night. The CI, ATF agents, and task force officers
from the High Intensity Drug Trafficking Area Unit met at
Homan Square, which was near Van Sach’s house, to plan
the operation. The CI met Agent Bray there and another
agent, Ofelia Uribe, searched the CI for any contraband.
Uribe did not find any contraband on the CI. The agents
then equipped the CI with a digital recorder, transmitter,
and $460 in cash to purchase the firearm.
  Task Force Officer Dwayne Johnson testified that, while
acting in an undercover capacity, he drove the CI to the
corner of Cermak and Karlov streets, near Van Sach’s
house. After the CI left, Officer Johnson conducted sur-
veillance of Van Sach’s house. He witnessed the CI walk to
the back of Van Sach’s house and then come out approxi-
mately ten minutes later. As the CI was leaving the house,
Officer Johnson saw Van Sach and a woman leave and
enter a Chevy Blazer that was parked in the front. Agents
Bray and Uribe were also conducting surveillance from a
nearby parking lot.
4                                                No. 05-2790

   Once the firearm transaction was complete, the agents
and the CI returned to Homan Square. Agent Bray re-
trieved the digital recording device and searched the CI’s
handbag. In the CI’s handbag Agent Bray found the
firearm, which was loaded. She then listened to the record-
ing of the meeting between Van Sach and the CI and she
recognized the two voices as belonging to Van Sach and the
CI, respectively. The recording was played for the jury and
the following conversation was heard:
     Van Sach: I have one 9 here.
     CI:         Hand it to me and I’ll hand you the money,
                 here you go.
After Van Sach handed the gun to the CI he asked for the
gun back in order to wipe it down because he did not “want
prints on the gun.” The CI did not testify at trial, but
the government authenticated the tapes through Agent
Bray’s testimony.


B. District Court Proceedings
  On May 13, 2004, Van Sach was indicted for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g).
Counsel was appointed for Van Sach. On July 27, 2004, Van
Sach’s counsel filed a motion to have him evaluated by
mental health experts to determine whether he had a
diminished capacity defense. Two days later, Van Sach’s
counsel orally moved to expand his request to include a
competency examination. The motion was initially denied
without prejudice but was later granted after Van Sach’s
counsel filed a written motion.
    At a status hearing on September 9, 2004, Van Sach said:
     I understand about the psychiatric thing. When it’s all
     over with, I do not wish to retain this attorney. I wish
     to represent myself. I know I’m going to be competent
No. 05-2790                                                5

    enough to stand trial, and I just want to represent
    myself.
   Judge Castillo repeatedly warned Van Sach about the
risks of self-representation but agreed to take Van Sach’s
motion to appear pro se under advisement. On October 27,
2004, Van Sach again expressed the wish to represent
himself. After further admonishment from Judge Castillo,
Van Sach requested copies of the case documents to see
if he could represent himself. The next day Van Sach’s
counsel moved to withdraw, citing irreconcilable differences.
Van Sach’s current attorney was subsequently appointed.
  Judge Castillo received several more pro se pleadings
from Van Sach. At a hearing on February 9, 2005, Van Sach
indicated that he was more than capable of trying his own
case, but wished to maintain stand-by counsel. Judge
Castillo told Van Sach that he had serious concerns about
Van Sach proceeding pro se but agreed to take the matter
under consideration and said he would read Van Sach’s
evaluation again.
  On February 17, 2005, Judge Castillo again admonished
and urged Van Sach not to proceed pro se. Ultimately,
Judge Castillo allowed Van Sach to represent himself
with the understanding that if Van Sach tried to ob-
struct the trial or was running into serious problems
with the procedure, Judge Castillo would end Van Sach’s
right to represent himself and make appointed counsel,
Gary Ravitz, proceed with the defense.
  Based on court security recommendations, on the first day
of trial Judge Castillo ordered Van Sach to appear in leg
shackles. Van Sach objected and asked the court to remove
the shackles. Judge Castillo denied his request. Because of
a security request from the United States Marshal’s Service
regarding court security, Judge Castillo said he was
reluctantly denying Van Sach’s motion to remove the
shackles in deference to the opinion of the Marshal’s
Service. After a jury was selected and sent home,
6                                              No. 05-2790

Judge Castillo stated on the record his reasons for the
shackling order:
    The Court:   Okay. I will state for the record without
                 the jury present now, is that I was shown
                 a series of consistent disciplinary viola-
                 tions in in-custody situations where Mr.
                 Van Sach, in common parlance, has been
                 written up for assaultive [sic]-type behav-
                 ior. And it is consistent and it is a pat-
                 tern, and that is the reason for the shack-
                 ling recommendation, which the court has
                 followed.
Van Sach’s stand-by counsel argued against the shackling
order, asking the Judge to take note that during the
day’s proceedings Van Sach conducted himself without
incident. Judge Castillo added,
    The Court:   No doubt about that, and I think that
                 that’s the way we need to continue to
                 bring this trial to a resolution without
                 any type of incident. But I have the right,
                 as a judge, to rely on professional judg-
                 ment given to me by the security experts,
                 of which the Court doesn’t claim to be a
                 security expert. But there was enough
                 objective evidence, and I don’t want to
                 have mini-trials on whether or not these
                 tickets were correct, but there is enough
                 of them over a consistent pattern that
                 seemed to me to justify the recommenda-
                 tion and justify me going along with the
                 recommendation.
Stand-by counsel continued to object, and expressed his
concern that the jury might think that Van Sach was an
extremely dangerous individual.
No. 05-2790                                                 7

    The Court:    Well, I think we’ve gone over it numerous
                  times during jury selection and I have the
                  jurors’ words that they will not use it
                  against Mr. Van Sach. And I will tell you
                  there’s just—I’m just looking at the disci-
                  plinary record. I won’t hesitate to put this
                  into the record. There’s assault with
                  serious injuries, refusing to obey orders
                  that have led to incidents over and over
                  again. Threatening bodily harm, inso-
                  lence. It just goes on and on. If you are
                  insistent in looking at it, I’ll be happy to
                  show it to you, but I don’t think we need
                  to have a mini-trial on this issue.
  Van Sach was convicted of being a felon in possession of
a firearm. Judge Castillo applied the Armed Career Crimi-
nal Act, 18 U.S.C. § 924(e), and determined that the
advisory Sentencing Guideline range was 210 to 262
months. Van Sach was sentenced at the low end of this
advisory range, to 210 months in prison. This timely appeal
followed.


                      II. Discussion
A. Due Process
  Van Sach contends that he was denied due process and a
fair trial when the district court ordered him to appear in
shackles at trial. He argues that his chance for a fair trial
was further undermined because he was proceeding pro se
and the jury therefore saw him in shackles every time he
rose to examine a witness or address the jury. A defendant’s
claim that he was denied a fair trial because the district
court ordered him to remain in shackles during the course
of the trial is reviewed for abuse of discretion. Deck v.
Missouri, 544 U.S. 622, 629 (2005).
8                                                No. 05-2790

   A defendant in a criminal case has the right to appear
before a jury free from shackles or other physical restraints.
Illinois v. Allen, 397 U.S. 337, 344 (1970); Roche v. Davis,
291 F.3d 473, 482 (7th Cir. 2002). The Supreme Court has
recognized, however, that a defendant’s right to be free from
restraint is not absolute. Holbrook v. Flynn, 475 U.S. 560,
567-68 (1986). The right to be free from shackles at trial
“may be overcome in a particular instance by essential state
interests such as physical security, escape prevention, or
courtroom decorum.” Deck, 544 U.S. at 629.
  Van Sach’s due process claim is not one we take lightly.
Shackling a defendant is an extreme measure and we
understand the prejudice that such an order can have on
the jury. Allen, 397 U.S. at 343-44. Yet, we also understand
a trial judge’s responsibility to the safety of jurors, attor-
neys, and witnesses in his or her courtroom. In considering
the Marshal Service’s request, Judge Castillo reviewed Van
Sach’s significant disciplinary record at the Metropolitan
Correctional Center in Chicago (“MCC”).
  From August 5, 2004 through January 14, 2005, Van Sach
was cited ten times for refusing to obey an order, one time
for refusing a work assignment, two times for being insolent
to an MCC staff member, one time for threatening bodily
harm, and one time for assault without a serious injury.
Moreover, in a letter addressed to the district court and
dated January 18, 2005 (almost a month before trial), the
Acting Warden of the MCC informed the court that the
defendant had again been found guilty of refusing to obey
an order and the MCC imposed a sanction of 60 days
disciplinary segregation, 180 days visiting restriction, and
the termination of 27 days of good conduct time. An MCC
memorandum from December 8, 2004, is perhaps the most
troubling. In the memorandum, a Deputy U.S. Marshal
reported that at approximately 9:00 a.m. on December 8,
Van Sach was placed in an interview room at the Dirksen
Federal Courthouse for a legal visit. Less than 30 seconds
No. 05-2790                                               9

after Van Sach’s attorney left, Van Sach repeatedly
pounded on the door. The marshal told him that he would
be removed momentarily and that there was no need to
bang on the door. Van Sach told the marshal that he would
urinate on the floor if he were not immediately removed
from the room. The marshal returned to the room within
five minutes to find that the defendant had, in fact, uri-
nated on the floor. At approximately 9:45 a.m., a different
marshal came to get Van Sach for his court proceeding.
While the marshal was trying to place handcuffs on Van
Sach, Van Sach stepped back with his right leg into a
stance as if prepared to take an active move on the marshal.
After the court proceeding that day, Van Sach was returned
to the interview room and he again repeatedly banged on
the door. Additionally, he put tissue paper over the window
slot to obstruct the marshals’ view into the room. A marshal
then entered the room to stop Van Sach’s behavior and Van
Sach told the marshal that if anyone entered the room they
would get hurt. The defendant was eventually restrained
and returned to the MCC.
   In considering the shackling order, Judge Castillo was
mindful of the issues that stand-by counsel raised, primar-
ily that with Van Sach appearing pro se, Van Sach’s leg
shackles would be even more visible and audible to the jury
than if he was proceeding with counsel. Yet, there was a
heightened concern with Van Sach appearing pro se: he
would be approaching the bench, addressing the jury,
examining evidence, using the podium, and approaching
witnesses. Judge Castillo believed that the shackling order
was necessary in light of both the inherent mobility in-
volved in representing oneself at trial and Van Sach’s
disciplinary record. We conclude that Judge Castillo
carefully assessed the special circumstances involved in
Van Sach’s trial, as Deck v. Missouri requires. 544 U.S. at
629. Judge Castillo went to great lengths to safeguard
against any prejudice the jury may have had as a result
10                                               No. 05-2790

of the leg shackles. During his initial instructions to the
venire on the morning of jury selection, the judge informed
the panel that defendant’s leg shackles were not to be
considered at all in terms of whether or not he’s guilty or
not guilty of the charge. Later that afternoon, Judge
Castillo again instructed the venire that the defendant’s leg
shackles were irrelevant to guilt or innocence on the charge.
Judge Castillo then asked the jury pool if there was anyone
who felt that they would lean towards guilt or innocence
based on the leg shackles, and no jurors responded yes.
Both the government and Van Sach reminded jurors in
their closing arguments that the shackling should play no
role in deliberations.
  Before shackles are used, Deck requires a trial judge to
determine that the measure is justified by a state interest
specific to the trial. Id. In this case, Judge Castillo poured
over Van Sach’s disciplinary records from the MCC and
determined that shackles were a necessary precaution given
the defendant’s mobility in representing himself at trial. We
hold that the district court did not abuse its discretion in
requiring Van Sach to wear leg shackles during the trial.


B. Right to Confrontation
  Van Sach next argues that his Sixth Amendment right to
confrontation was violated when the government did
not call the CI as a witness. Interpretation of the Con-
frontation Clause of the Sixth Amendment is a legal
question that we review de novo. United States v. Sutton,
337 F.3d 792, 798 (7th Cir. 2003).
   In a motion in limine, the government explained that
it did not intend to call the CI as a witness but it would
seek to admit the recordings through Agent Bray’s testi-
mony. At trial, the court admitted a series of recorded
conversations between Van Sach and the CI. The recordings
were made on July 14, July 21, and July 28, 2003. Because
No. 05-2790                                                11

of a technical glitch on two of the recordings, only the
defendant’s side of the conversation with the CI could be
heard. On the other recordings, Agent Bray testified that
she recognized the voices as belonging to the CI and Van
Sach. Judge Castillo specifically instructed the jury, during
trial and prior to deliberations, that it was “not to consider
the statements of the cooperating individual for the truth of
the matter asserted. Instead, the statements made by the
confidential informant are only relevant to provide the
context for what the listener says, does, or believes in
response to them.”
   When recorded evidence is admitted in the absence of
testimony by an informant who recorded the conversation,
the Confrontation Clause of the Sixth Amendment is
not violated if the statements are non-testimonial and
are not offered for the truth of the matter asserted. It is
well settled that non-hearsay statements are admissible
if they are offered to provide context. See United States v.
Tolliver, Nos. 05-2910, 05-2962, 2006 U.S. App. WL
2007642, at *4 (7th Cir. July 19, 2006); United States v.
Gajo, 290 F.3d 922, 930 (7th Cir. 2002); United States v.
Davis, 890 F.2d 1373, 1380 (7th Cir. 1989).
  Van Sach contends that his right to confrontation was
violated based on the Supreme Court’s recent decision in
Crawford v. Washington, 541 U.S. 36 (2004). In Crawford,
the Supreme Court was clear that out-of-court testimonial
statements are barred by the Confrontation Clause unless
the witnesses are unavailable and the defendant had a prior
opportunity for cross-examination. Id. at 54. Yet, the Court
narrowed its holding to testimonial statements, explaining
that the Confrontation Clause “does not bar the use of
testimonial statements for purposes other than establishing
the truth of the matter asserted.” Id. at 59 n.9 (citing
Tennessee v. Street, 471 U.S. 409, 414 (1985)). Further, the
CI’s statements were non-testimonial, and thus fall outside
of Crawford. As we held in United States v. Tolliver,
12                                               No. 05-2790

statements providing context for other admissible state-
ments are not hearsay because they are not offered for their
truth. Tolliver, *3.
  In this case, the court gave the jury a limiting instruction,
explaining that the CI’s statements were only to provide
context for the defendant’s admissions on the recordings,
and could not be used for the truth of the matter asserted
therein. Further, while the CI did not testify, the defendant
did cross-examine Agent Bray, and indirectly, was able to
reach the CI’s possible biases. During his cross-examination
of Agent Bray, Van Sach elicited testimony that the CI had
previously filed assault charges against him, that the CI
had received money from the ATF, and that the CI had
committed a felony while working for the ATF.
  Judge Castillo twice instructed the jury not to con-
sider the CI’s statements for their truth, but rather as
context for Van Sach’s admissions on the tape recording.
Since Crawford’s prohibition is for testimonial hearsay,
Crawford, 541 U.S. at 59-60 n. 9, and the declarant’s
statements here were offered as context evidence rather
than for their truth, we conclude that the admission of the
CI’s statements did not offend the Confrontation Clause.


C. Jury Instructions
  Van Sach also challenges two of the jury instruc-
tions given by the district court. He claims the district
court’s instructions for possession and knowledge were
improper and that they had the effect of rewarding the
government’s failure to call the informant witness. We
review a district court’s decisions on jury instructions for
abuse of discretion. United States v. Messino, 382 F.3d 704,
711 (7th Cir. 2004). We review de novo whether an in-
struction accurately summarizes the law or if it is legally
erroneous. United States v. Stewart, 411 F.3d 825, 827
(7th Cir. 2005).
No. 05-2790                                               13

  Van Sach first challenges the jury instruction for posses-
sion. Judge Castillo gave the following instruction:
    Possession of an object is the ability to control it.
    Possession exists when an individual holds an object, in
    this case a firearm, even if the handling is only momen-
    tary, as long as the individual does so knowingly and
    intends to handle the object. Possession may also exist
    even when a person is not in physical contact with the
    object, but knowingly has the power and intention to
    exercise direction or control over it, either directly or
    through others. A person can possess an object without
    owning the object provided that the person has the
    power and intention to control the object.
  The government’s burden in a § 922(g) case includes
proving beyond a reasonable doubt that the defendant
possessed the charged firearm. It is therefore critical that
the district court clearly define the term possession for the
jury.
  At the jury instruction conference, stand-by defense
counsel objected to the government’s suggested posses-
sion instruction because it was not a verbatim version of the
possession instruction approved by the Seventh Circuit in
United States v. Hendricks, 319 F.3d 993, 1004-05 (7th Cir.
2003). Judge Castillo agreed with stand-by defense counsel
and gave the instruction from Hendricks instead.
  The possession instruction that Judge Castillo gave to the
jury accurately summarized the law in this Circuit and
clearly informed the jury that, in order to convict, it was
required to find that Van Sach knowingly and intentionally
possessed the firearm. Moreover, Judge Castillo modified
the instruction so that it mirrored the posses-
sion instruction preferred by defendant and approved by
this Court in Hendricks. The district court did not abuse its
discretion in its use of the possession jury instruction.
14                                               No. 05-2790

  Van Sach also challenges the knowledge instruction.
Judge Castillo gave the following knowledge instruction to
the jury:
     When the word “knowingly” is used in these instruc-
     tions, it means that the defendant realized what he was
     doing and was aware of the nature of his conduct, and
     did not act through ignorance, mistake, or accident.
     Knowledge may be proved by the defendant’s conduct,
     and by all the facts and circumstances surrounding the
     case.
Van Sach argues that the second sentence of the instruction
should be given only in cases where the evidence presented
at trial was mostly circumstantial. Yet, a significant part of
the government’s case against Van Sach was circumstan-
tial. The evidence as it related to possession of the firearm
consisted of tape recordings where Van Sach talked about
the firearm. Further, the surveillance agents’ testimony
about their search of the CI and what they found before and
after the firearm transaction was also circumstantial
evidence. We hold that it was not an abuse of discretion for
Judge Castillo to give a knowledge instruction to the jury
that also addressed circumstantial evidence.


D. 18 U.S.C. § 922(g)(1)
  Van Sach next argues that 18 U.S.C. § 922(g)(1) is
unconstitutional because, in enacting this statute, Congress
exceeded its power under the Commerce Clause. We have
consistently rejected similar Commerce Clause challenges
to § 922(g) since the “jurisdictional element of § 922(g)
provides the required nexus with interstate commerce.”
United States v. Hemmings, 258 F.3d 587, 594 (7th Cir.
2001). See, e.g., United States v. Olson, 408 F.3d 366, 372-73
(7th Cir. 2005); United States v. Williams, 410 F.3d 397, 400
(7th Cir. 2005). Moreover, the firearm that Van Sach sold to
the CI satisfied the minimal nexus to interstate commerce
No. 05-2790                                                         15

that is required. ATF Special Agent Michael Walsh testified
that the firearm in question was manufactured in Montana
and, thus, it necessarily traveled in interstate commerce
prior to Van Sach’s possession of it in Illinois. Therefore,
Judge Castillo properly denied Van Sach’s constitutional
challenge to 18 U.S.C. § 922(g)(1).


E. Sentencing
  Finally, we address Van Sach’s challenge of the district
court’s application of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). Van Sach argues that the
district court violated his Sixth Amendment rights be-
cause the jury did not determine that his prior convic-
tions were violent felonies beyond a reasonable doubt. He
further contends that it was unconstitutional for Judge
Castillo to sentence him to a term of imprisonment in
excess of the statutory maximum of ten years as provided
by 18 U.S.C. § 924(a)(2).1
  At Van Sach’s sentencing hearing the district court
concluded that he should be sentenced under ACCA because
he had three prior qualifying convictions for violent
felonies.2 As a result, Judge Castillo sentenced him to 210
months’ imprisonment.


1
   The statutory maximum prescribed by 18 U.S.C. § 924(a)(2)
states that “[w]hoever knowingly violates subsection (a)(6), (d), (g),
(h), (i), (j), or (o) of section 922 shall be fined as provided in this
title, imprisoned not more than 10 years, or both.” Van Sach was
convicted of violating 18 U.S.C. § 922(g).
2
  Under 18 U.S.C. § 924(e), “a person who violates section 922(g)
of this title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another, such person shall be fined under this title and
imprisoned not less than fifteen years. . . .”
16                                              No. 05-2790

  While the Supreme Court has issued several recent
opinions clarifying a defendant’s Sixth Amendment right to
jury findings that increase a defendant’s sentence beyond
the statutory maximum, the Almendarez-Torres exception
has yet to be overruled. Almendarez-Torres v. United States,
523 U.S. 224 (1998). Almendarez-Torres clarified that a trial
judge may determine at sentencing whether a prior convic-
tion increases the maximum sentence that may be imposed
on a defendant without violating the Sixth Amendment. Id.
The Supreme Court’s recent Sixth Amendment case law has
maintained this holding. See United States v. Booker, 543
U.S. 220 (2005); Blakely v. Washington, 542 U.S. 296 (2004);
Ring v. Arizona, 536 U.S. 584 (2002); Apprendi v. New
Jersey, 530 U.S. 466 (2000). Van Sach points to Shepard v.
United States for support that findings regarding prior
convictions should be made by the jury. 544 U.S. 13 (2005).
But, Van Sach concedes that we have already decided that
the Almendarez-Torres exception for prior convictions still
stands after Shepard. See United States v. Browning, 436
F.3d 780, 782 (7th Cir. 2006); United States v. Ngo, 406 F.3d
839, 843 (7th Cir. 2005); United States v. Williams, 410 F.3d
397, 401 (7th Cir. 2005). Shepard itself acknowledges the
continuing validity of the Almendarez-Torres exception. 544
U.S. at 24-26, 37-38 (2005) (plurality and dissenting
opinions). Given the state of the law, we conclude that Van
Sach’s Sixth Amendment rights were not violated when
Judge Castillo determined that Van Sach should be sen-
tenced under ACCA.
  Van Sach attacks the district court’s findings on his
prior convictions a second way. While he stipulated to a
prior felony conviction pursuant to Old Chief v. United
States, 519 U.S. 172 (1997), and admitted at sentencing that
he had a prior state robbery conviction, he contends that he
was forced into the stipulation by prosecutors, the case
agent, and stand-by counsel. Van Sach also argues that
even if the two prior felony convictions he conceded stand,
No. 05-2790                                               17

Judge Castillo erred in determining that two other offenses
qualified as predicates under ACCA.
  Van Sach’s claim that he was forced into the stipula-
tion at trial finds no support in the record. When the Old
Chief stipulation was read in open court to the jury, the
government asked defendant if it was so stipulated and
he responded, “Yes, sir.” With no objection from Van Sach
at trial and nothing in the record to suggest coercion or
disagreement with the stipulation, we find the district court
did not plainly err when it did not present the question of
felony convictions to the jury. In United States v. Lewis, we
explained that a defendant “waive[s] any claim under the
Sixth Amendment when he t[akes] advantage of Old Chief
to prevent the jury from learning details about his prior
conviction.” 405 F.3d 511, 513 (7th Cir. 2005).
  The other convictions that Van Sach urges should not
be included as ACCA predicate offenses were for aggravated
battery, in violation of 720 ILCS 5/12-4(b)(6). The first
offense in question occurred on June 14, 1994 and the
second occurred on May 3, 1995. Van Sach contends that
these prior convictions for aggravated battery are not
violent felonies under 18 U.S.C. § 924(e).
  In determining whether an offense is eligible for ACCA,
the Supreme Court offers guidance for a district court,
holding that the court’s enquiry is “limited to 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.” Shepard v. United
States, 544 U.S. 13, 26 (2005). In this case, Judge Castillo
specifically acknowledged these limitations under Shepard
and confined his analysis to the charging documents
and plea colloquies from June 14, 1994, and May 3, 1995.
After reviewing the documents, Judge Castillo con-
cluded that Van Sach should be sentenced under ACCA
18                                                   No. 05-2790

because these convictions for aggravated battery against
police officers involved a serious potential risk of physical
injury to others, and were felony offenses under 18 U.S.C.
§ 924(e)(2)(B). See United States v. Hayes, 919 F.2d 1262,
1266 (7th Cir. 1990) (aggravated battery to a police officer
is a violent felony for purposes of ACCA). We therefore hold
that the district court properly rejected Van Sach’s Sixth
Amendment claim and did not err in sentencing him under
ACCA.3


                       III. Conclusion
  For the foregoing reasons, we AFFIRM the judgment of the
district court.

A true Copy:
       Teste:

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




3
  In an additional pro se brief, the appellant argued that his
conviction should be overturned for insufficient evidence, that the
prosecution’s closing argument constituted government miscon-
duct, and that his sentence is unconstitutional. These claims are
without merit. Additionally, Van Sach claimed that he received
substandard medical care during his incarceration. This appeal is
not the proper venue to pursue such a claim.


                     USCA-02-C-0072—8-17-06
