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

No. 03-4100
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.
DEWAYNE LEWIS,
                                          Defendant-Appellant.

                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, Fort Wayne Division.
            No. 1:01-cr-67—William C. Lee, Judge.
                         ____________
      ARGUED APRIL 1, 2005—DECIDED APRIL 19, 2005
                      ____________




 Before EASTERBROOK, MANION, and ROVNER, Circuit
Judges.
  EASTERBROOK, Circuit Judge. A jury convicted Dewayne
Lewis of possessing a firearm, despite a felony conviction
that made it unlawful for him to carry a gun. 18 U.S.C.
§922(g)(1). His defense at trial was that the two witnesses
who testified that they saw him armed were liars. The princ-
ipal witness was Shaquandra Williams, with whom Lewis
had lived off and on for years. After a quarrel, Williams
accused Lewis of threatening her with a gun. Her friend
Malikah Simpson corroborated the story. Lewis contends
that because enmity gave both witnesses incentives to lie,
2                                                No. 03-4100

and because Williams handed the gun to the police (so per-
haps Lewis had not touched it; his fingerprints were not on
the weapon), the jury should not have believed them. Maybe
so; an oath to give “nothing but the truth” does not guarantee
honesty. Yet an appellate court does not reassess credibility.
Defense counsel thoroughly cross-examined the witnesses
about their experiences with and attitudes toward Lewis,
and the jurors must have grasped the possibility that they
were inventing a tale. So, too, the jurors knew Lewis’s posi-
tion: That the gun had been in Williams’s house, and out of
Lewis’s reach, on the day in question. But the proposition
that the gun had been locked away was his version of events,
not (as he would have it) an incontestable fact. Lewis de-
picts Williams as a jilted and jealous ex-lover rather than
as a battered partner, which is how Williams described her-
self. Whether Williams and Simpson were honest is a
subject that the Constitution commits to the jurors as
finders of fact, rather than to a reviewing court.
   Lewis contends that mistakes along the way may have
influenced the verdict. For example, he contends that the
district judge committed clear error when, before jury selec-
tion began, he read parts of the indictment to members of
the venire. The indictment stated that Lewis had been
convicted of a felony and sentenced to ten years’ imprison-
ment. The jurors were bound to learn about this conviction—
it was, after all, an element of the offense—but did not need
to learn about the length of the sentence. By arrangement,
the crime of which Lewis had been convicted (robbery) was
kept from the jurors. See Old Chief v. United States, 519
U.S. 172 (1997). The agreement also provided that the fact
of conviction, and the length of the sentence, could be re-
vealed. Lewis later changed his mind and wanted the length
of the sentence withheld, but when the judge mentioned the
ten-year term counsel did not object. Appellate counsel
(succeeding the lawyer who had represented Lewis at trial)
tells us that it did not seem significant at the time, so no
No. 03-4100                                                 3

one paid much attention. That’s exactly why it cannot lead
to reversal now. It is quite unlikely that this brief mention,
which the potential jurors themselves may have missed,
could have affected the outcome of a trial in which the issue,
when joined, was the complaining witnesses’ credibility
rather than anything related to Lewis’s prior conviction.
  Lewis received a sentence of 70 months’ imprisonment,
from the range of 63 to 78 months applicable to a person
with his offense and criminal history. Because the district
court treated his robbery conviction as a “crime of violence”
for the purpose of U.S.S.G. §2K2.1(a)(4)(A), his offense level
was 20, six levels higher than would have been appropriate
had the robbery been treated as a non-violent offense. Lewis
contends that, because the jury did not evaluate the nature
of his prior conviction, United States v. Booker, 125 S. Ct.
738 (2005), entitles him to a deduction of those six levels
and a sentence in the resulting range of 33 to 41 months. Yet
Booker’s rule is: “Any 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 the jury beyond a reasonable doubt.” Id. at 756
(emphasis added). Criminal history is all about prior con-
victions; its ascertainment therefore is excluded by Booker’s
own formulation and governed by Almendarez-Torres v.
United States, 523 U.S. 224 (1998).
  Even if the Court were to overrule Almendarez-Torres and
eliminate the prior-conviction proviso, Lewis could not
benefit. He waived any claim under the sixth amendment
when he took advantage of Old Chief to prevent the jury
from learning details about his prior conviction. A defendant
cannot insist during trial that the jury be kept in ignorance
yet demand after its end that he receive a lower sentence
because the jury did not pass on the very issue that had
been withheld at his request. See Shepard v. United States,
125 S. Ct. 1254, 1263 n.5 (2005) (“any defendant who feels
4                                                No. 03-4100

that the risk of prejudice is too high can waive the right to
have a jury decide questions about his prior convictions.”)
(plurality opinion); Blakely v. Washington, 124 S. Ct. 2531,
2541 (2004) (“a defendant . . . may consent to judicial fact-
finding as to sentence enhancements, which may well be in
his interest if relevant evidence would prejudice him at
trial.”).
   Still, the district judge made a non-constitutional error in
evaluating the nature of Lewis’s prior conviction. Recidivist
enhancements depend on the crime of which the person has
been convicted, not on the precise conduct that led to the
conviction. See, e.g., Shepard, 125 S. Ct. at 1259-60 (opinion
of the Court), and Taylor v. United States, 495 U.S. 575,
600-02 (1990). (Shepard and Taylor deal with the Armed
Career Criminal Act, 18 U.S.C. §924(e). Their approach
governs recidivist enhancements under the Sentencing
Guidelines too. See United States v. Shannon, 110 F.3d 382,
384 (7th Cir. 1997) (en banc); Bush v. Pitzer, 133 F.3d 455,
457 (7th Cir. 1997).) That legal criteria (“what kind of crime
is this?”) rather than factual inquiries (“what did this person
do when violating that statute?”) identify a “crime of vio-
lence” is the principal reason why the proviso to Booker
exists, as Part III of Justice Souter’s opinion in Shepard
explains. (Only four Justices joined Part III, but the three
Justices who dissented in Shepard concluded that recidivist
enhancements are unproblematic under the sixth amend-
ment, so in practical effect Part III speaks for the Court.)
  Guideline 4B1.2, which defines “crime of violence” for pur-
poses of the enhancement Lewis received under §2K2.1 (see
Application Note 1 to that section), says that the term
includes any offense that “involves conduct that presents a
serious potential risk of physical injury to another”
(§4B1.2(a)(2)) or that has as an element “the use, attempted
use, or threatened use of physical force against the person
of another” (§4B1.2(a)(1)). This definition closely tracks the
one in 18 U.S.C. §16. See Bazan-Reyes v. INS, 256 F.3d 600,
No. 03-4100                                                 5

609-12 (7th Cir. 2001). Lewis’s prior conviction for robbery,
in violation of Ind. Code 35-42-5-1, is a “crime of violence”
under both parts of this definition. Robbery entails taking
property from the person of another by force or threat and
so is a crime of violence under subsection (1). (Indiana
expresses this as “using or threatening the use of force on
any person” or “putting any person in fear”. The “fear” in
this formulation is fear of physical injury rather than of
defamation; §35-42-5-1 is not a blackmail statute. See Cross
v. State, 235 Ind. 611, 137 N.E.2d 32 (1956); Rigsby v. State,
582 N.E.2d 910, 912 (Ind. App. 1991).) Even if the offender
uses a threat rather than actual force, the victim may retal-
iate or flee, and violence erupt; this risk makes robbery a
crime of violence under subsection (2). We have held that,
because of this risk, theft from a person always is a crime
of violence. See United States v. Howze, 343 F.3d 919 (7th
Cir. 2003). See also Flores v. Ashcroft, 350 F.3d 666 (7th
Cir. 2003). Robbery, which entails force or fear rather than
stealth (“theft from a person” includes pickpocketing), is
readily classified as a crime of violence.
  Instead of evaluating the elements of robbery under
Indiana law, or the risks posed by robberies as a class, the
district court stressed what Lewis was alleged to have done.
The judge wrote that affidavits in the earlier prosecution
“indicate that Lewis entered a jewelry store in Ft. Wayne,
IN, armed with a short-barreled pump action shotgun,
demanded that the store owner open and remove the
contents of the store safe, and then fled with an amount of
currency and jewelry.” But why was the judge considering
affidavits rather than the elements of, or risks ordinarily
associated with, the crime of conviction? Lewis did not have
an opportunity to contest the affiants’ allegations. (He did
not deny that this is what the affidavits said, but he did not
admit that they accurately narrated the earlier events.)
  Shepard and Taylor hold that the judge is “limited to
examining the statutory definition, charging document, writ-
6                                                 No. 03-4100

ten plea agreement, transcript of plea colloquy, and any
explicit factual finding made by the trial judge to which the
defendant assented.” Shepard, 125 S. Ct. at 1257 (opinion
of the Court). Affidavits attached to an information as part
of Indiana practice are not part of the “charging document”
for this purpose. The affidavit is just a police report under
oath, and Shepard holds that police reports may not be
considered. The list in Shepard is designed to identify
documents that illuminate what crime the defendant com-
mitted, which can be hard to pin down if one state statute
defines both “violent” and “nonviolent” versions of a single
offense. Using additional materials such as affidavits to
ascertain how this person violated a statute departs from
the categorical approach that Shepard and Taylor adopt.
   Although it is tempting to treat the district judge’s use of
the affidavits as a trifle—after all, robbery always is a “crime
of violence”—the line between categorical and person-spe-
cific classification is important. Sentencing in a felon-in-
possession case must not turn into a reprise of the earlier
prosecution, for practical reasons as well as the constitutional
considerations limned in Part III of Shepard. The district
judge may well have used the affidavit’s allegations when
deciding where in the range to sentence Lewis, which would
misconceive the nature of a recidivist enhancement. What
matters is the fact of conviction, rather than the facts be-
hind the conviction. The United States does not argue that
it would have been appropriate to use these affidavits to
decide where in the range to sentence Lewis, if they were
not appropriately used to classify his prior conviction.
  The conviction is affirmed. The sentence is vacated and
the case remanded for resentencing consistent with this
opinion. When resentencing Lewis, the judge will treat the
guidelines as advisory, per Booker’s remedial holding, and
impose a reasonable sentence.
No. 03-4100                                          7

A true Copy:
      Teste:

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




               USCA-02-C-0072—4-19-05
