                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 08-1914

U NITED S TATES OF A MERICA,
                                                  Plaintiff-Appellee,
                                 v.

D ARRYL F OSTER,
                                              Defendant-Appellant.


            Appeal from the United States District Court
      for the Southern District of Indiana, Evansville Division.
               No. 07-cr-011—Richard L. Young, Judge.



    A RGUED D ECEMBER 2, 2008—D ECIDED A UGUST 18, 2009




 Before C UDAHY, F LAUM, and SYKES, Circuit Judges.
  C UDAHY, Circuit Judge. Darryl Foster pleaded
guilty to violating the federal Gun Control Act of 1968,
18 U.S.C. § 921 et seq., which prohibits convicted felons
from possessing a firearm. The district court enhanced
Foster’s sentence pursuant to the Armed Career Criminal
Act (ACCA) because it found that he had three prior
violent felony convictions and that he used his gun in
connection with the commission of a violent crime, to
wit: criminal recklessness. Foster has affirmatively
2                                               No. 08-1914

waived any challenge to the ACCA enhancement, and the
argument that he does make on appeal is frivolous. We
therefore affirm.


                             I.
  On March 3, 2007, police responded to a report that gun
shots were fired outside a home in Evansville, Indiana.
Witnesses at the scene testified that someone named
Darryl, or “Big D”, fired his gun in the air during an
altercation outside the house. The police found a spent .380
caliber shell casing on the sidewalk in the front of the
house. They apprehended Darryl Foster—who matched
the witnesses’ descriptions of the shooter—inside the
house and discovered a .380 caliber semi-automatic
pistol in the basement. Foster, who has six prior felony
convictions, admitted that the gun was his.
  Foster was charged with unlawful possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). He pleaded
guilty and testified at the plea hearing that he fired
shots in the air to break up a fight. Specifically, he said
two men attacked one of his friends, and that “as I went
to break up the fight, you know, I grabbed a gun out of
the vehicle of a truck and shot in there to break the fight
up and took him [Foster’s friend] in the house.”
  Foster would later change his story. At the sentencing
hearing three months after he entered his guilty plea,
Foster claimed for the first time that he did not fire the
gun. (Probably it was not a coincidence that Foster at-
tempted to recant his admission after the district court
explained the various sentencing enhancements to
No. 08-1914                                                    3

which he was subject.) The district court refused to
credit Foster’s recantation. Because the court found that
Foster was an armed career criminal who had used a
firearm in connection with another felony, it enhanced
his offense level from 24 to 34. The court ultimately
sentenced Foster to 188 months’ imprisonment, the bottom
of his Guidelines range.


                               II.
   In effect, the district court enhanced Foster’s sentence
twice: first, it enhanced his sentence under the Armed
Career Criminal Act; and second, it enhanced his sen-
tence again because it found that he had used his
firearm in connection with a violent crime, to wit: criminal
recklessness. See U.S.S.G. § 4B1.4(b)(3) (possession of a
firearm by an armed career criminal is to be assigned a
base offense level of 34; use of this firearm in connection
with a new crime of violence triggers an additional, one-
level enhancement). Foster challenges only the latter
enhancement on appeal. His argument is that there
was insufficient evidence that he had actually fired the
gun he admitted to possessing. We review the district
court’s factual findings for clear error. See United States
v. Turner, 400 F.3d 491, 500 (7th Cir. 2005).1


1
  Foster suggests that we review the factual findings in
support of a district court’s sentencing determination de novo.
However, the cases he cites do not stand for this proposition.
This is regrettable. Litigants, of course, are free to advocate
for a particular standard of review. What they may not do is
                                                   (continued...)
4                                                No. 08-1914

  Foster’s challenge to the district court’s factual
findings is frivolous. Facts in support of sentencing
determinations need only be proven by a preponderance
of the evidence. McMillan v. Pennsylvania, 477 U.S. 79,
84 (1986); United States v. Omole, 523 F.3d 691, 701 (7th
Cir. 2008). The question, therefore, was whether the gov-
ernment had shown that it was more likely than not
that Foster discharged his handgun in the presence of
others. Any suggestion that the government had not
carried its burden is silly: Foster’s own testimony—in
open court and under oath—was more than enough
to establish by a preponderance that Foster had shot the
gun. See United States v. Warneke, 310 F.3d 542, 550 (7th
Cir. 2002) (“an admission is even better than a jury’s
finding beyond a reasonable doubt.”). Again, Foster
testimony was: “I went to break up the fight . . . I grabbed
a gun out of the vehicle . . . and shot in there . . . .” That
Foster later sough t to recant this adm ission
changes nothing. The district court found his recantation
to be non-credible, and this finding is entitled to great
deference. See United States v. Taylor, 72 F.3d 533, 542
(7th Cir. 1995). Indeed, Foster’s attorney all but admitted
the folly of this appeal during oral argument, where the
most spirited defense of his argument he could muster
was that he “endeavored to definitely not bring a
frivolous appeal.”



1
  (...continued)
make misleading representations concerning the manner
in which we have reviewed certain questions in the past.
No. 08-1914                                               5

  Unfortunately, the more interesting arguments were
the ones that Foster did not make. In United States v.
Smith, we held that criminal recklessness does not consti-
tute a crime of violence under the Armed Career
Criminal Act. United States v. Smith, 544 F.3d 781, 786 (7th
Cir. 2008) (“after Begay [v. United States, 128 S. Ct. 1581
(2008)], the residual clause of the ACCA should be inter-
preted to encompass only ‘purposeful’ crimes.”). We
recently reaffirmed our holding in Smith in United
States v. Woods, No. 07-3851, 2009 WL 2382700 (7th Cir.
Aug. 5, 2009). This line of cases drives a wedge between
crimes of recklessness and crimes of violence. Thus,
there is a strong argument that the district court com-
mitted legal error—as opposed to factual error—by
assuming that the fact the Foster shot the gun in the
air with others nearby is enough, without more, to sup-
port the conclusion that Foster used the gun in connec-
tion with a crime of violence.
  What is even more troubling is that the ACCA enhance-
ment itself appears to have been erroneous. The ACCA
requires courts to impose significantly more stringent
sentences where an offender has at least three prior
convictions “for a violent felony or a serious drug of-
fense.” 18 U.S.C. § 924(e)(1). Here, one of the predicates
for Foster’s ACCA enhancement was a 1990 conviction
in Indiana for criminal recklessness. It was precisely
this crime that Smith held was not a crime of violence
under the ACCA. 544 F.3d at 787.
  Since the briefs for this case were submitted before
we had decided Smith, it is understandable that Foster
failed to identify this issue initially. Ordinarily, we
6                                               No. 08-1914

might review the issue nevertheless for plain error.
United States v. Olano, 507 U.S. 725, 732 (1993);
United States v. James, 464 F.3d 699, 709 (7th Cir. 2006).
However, during oral argument Foster’s counsel
explicitly declined our invitation to consider the appro-
priateness of Foster’s ACCA enhancement in the light
of Smith. When advised at oral argument that we had
recently held that crimes of recklessness do not sup-
port an ACCA enhancement, counsel’s response was
“I think the case law is clear that firing a handgun in
and of itself under the circumstances of a case such as
this is, can be considered a crime of violence.”
  We cannot make a party’s arguments for him, or
force him to make arguments he seems determined not
to raise. See Miller v. Willow Creek Homes, Inc., 249 F.3d
629, 631 (7th Cir. 2001) (“attorneys speak for their clients
in court, and once a position is announced, back-
pedaling . . . cannot be allowed.”); United States v.
McClellan, 165 F.3d 535, 550 (7th Cir. 1999) (courts
“are not in the business of formulating arguments for
the parties.”). Because Foster’s counsel affirmatively
waived any challenge to the ACCA enhancement, we
cannot consider this issue here. The argument that
Foster has made is without merit. Accordingly, we
have no choice but to affirm the judgment of the
district court.
                                                 A FFIRMED.




                           8-18-09
