                                   NONPRECEDENTIAL DISPOSITION
                                     To be cited only in accordance with
                                              Fed. R. App. P. 32.1



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

                                            Submitted May 21, 2010*
                                             Decided May 25, 2010


                                                   Before

                                     FRANK H. EASTERBROOK , Chief Judge

                                     RICHARD A. POSNER, Circuit Judge

                                     MICHAEL S. KANNE , Circuit Judge



No.      10-1069                                                     Appeal from the United
                                                                     States District Court for the
UNITED STATES OF AMERICA,                                            Western District of Wisconsin.
      Plaintiff-Appellee,
                                                                     No. 09-CR-125-C-01
                  v.                                                 Barbara B. Crabb, Judge.

THURMAN M. WYATT ,
     Defendant-Appellant.



                                                    Order

      Thurman Wyatt has been convicted of possessing a firearm despite his prior
felony convictions. He was sentenced to 188 months’ imprisonment as an armed career
criminal. 18 U.S.C. §924(e)(1).

       His principal argument on appeal is that the Constitution entitled him to a jury
trial on the existence and nature of his prior convictions. That contention was rejected in


         * After examining the briefs and the record, we have concluded that oral argument is unnecessary.
See Fed. R. App. P. 34(a); Cir. R. 34(f).
No. 10-1069                                                                    Page 2

Almendarez-Torres v. United States, 523 U.S. 224 (1998). Although Wyatt contends that
Almendarez-Torres does not apply to characterizations of prior convictions (here,
whether Wyatt’s three drug convictions are “serious” and his conviction for fleeing to
avoid arrest is a “violent felony”), we held otherwise. United States v. Spells, 537 F.3d
743, 753 n.4 (7th Cir. 2008); United States v. Hendrix, 509 F.3d 362, 375–76 (7th Cir. 2007);
United States v. Peters, 462 F.3d 716, 718 (7th Cir. 2006); United States v. Lewis, 405 F.3d
511, 513 (7th Cir. 2005). Wyatt contends that only a jury may find facts in a criminal
prosecution, but the classification of a prior conviction does not depend on any facts
found by a judge. To the contrary, classification depends on the crime of which the
defendant has been convicted, not what he did in fact, and the judge is forbidden to
look behind the conviction to contestable factual materials. See Taylor v. United States,
495 U.S. 575 (1990); Shepard v. United States, 544 U.S. 13 (2005). The district court
followed Taylor and Shepard, relying on the records of Wyatt’s convictions rather than
making any findings of fact.

       Wyatt’s other argument is that the district court erred by directing that his federal
sentence run consecutively to a state sentence that had yet to be pronounced. The
prosecutor concedes that the judge erred. See Romandine v. United States, 206 F.3d 731
(7th Cir. 2000). But the prosecutor adds, and we agree, that the error was harmless. The
day after the federal sentence, the state judge sentenced Wyatt to time served on the
state charges. The choice between consecutive and concurrent sentences—and whether
the state judge was entitled to make that election—therefore did not make a difference.

                                                                               AFFIRMED
